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Evolution of Canada’s Youth Criminal Justice System

The following sections present an overview of the evolution of Canada’s youth criminal justice system. See the more detailed timeline of governmental, legislative and judicial milestones or the Bibliography for additional resources on the experiences of youth with the Canadian youth criminal justice system.

• Youth Justice Before 1908

  Before the establishment of a separate youth criminal justice system in the early 20^th century, Canadian law allowed for the criminal prosecution and sentencing of children and youth aged seven and older. While the law generally protected children under the age of 14 from prosecution, children aged 7 to 14 could be tried and sentenced in the same way as individuals over age 14 if the court could show the child was legally responsible for their actions (i.e., that they were able to distinguish right from wrong, and could understand the impact of their actions). Thus, prior to 1908, children and youth over the age of seven could be prosecuted and sentenced in the same way as adult offenders, including lengthy terms of imprisonment in adult correctional facilities.^Footnote1

• Juvenile Delinquents Act, 1908–1984

  Growing concerns about the negative impacts of criminal prosecution and harsh sentencing on children led to a reform movement in the mid-19^th century, known as the “child saving movement.” This movement was based on the idea that children and youth are still in the process of developing social and emotional maturity, and are more readily able to change than adults.^Footnote2

  In 1908, Canada established a separate youth criminal justice system under the Juvenile Delinquents Act (JDA) for children and youth aged 7 to 16. This legislation introduced the offence of “delinquency”, which included criminal and non-criminal behaviours. Under the JDA, a child or youth who may not have committed a criminal act could still be required to go to court if they showed other non-criminal delinquent behaviours. This included skipping school and if they were perceived as “corrupted” by their life circumstances such as living in poverty or having criminal or abusive parents.

  The goal of the JDA was to reform youth by placing those considered to be “delinquents” into custody for indeterminate periods to “re-train” them until they were deemed reformed by the court.^Footnote3 While the JDA sought to limit the negative impacts of involvement in the criminal justice system, the law had the unintended consequence of exposing youth to intensive and disproportionate correctional interventions that had little to no connection with their offending behaviours.

• Young Offenders Act, 1984–2003

  By the mid-20^th century, there was significant interest in reforming youth criminal justice legislation in part due to the lack of legal protections and due process rights for accused youth and youth offenders. This led to the Young Offenders Act (YOA), which came into force in 1984. The new legislation emphasized the need to protect the public and hold youth responsible, while respecting their due process rights and reducing the use of custodial sanctions.^Footnote4 The YOA also eliminated the offence of “delinquency” and increased the age of criminal responsibility from 7 to 12.

  Despite these changes, the number of youth in the criminal justice system substantially increased between 1986 and the early 1990s, before slowly stabilizing in the late 1990s.^Footnote5 Under the YOA, the incarceration rate for youth was higher than the rate for adults in the 1990s and early 2000s.^Footnote6 This was likely due, in part, to the YOA’s lack of guidance on police discretion and the limited use of extrajudicial measures, which caused police to overrely on criminal charges when responding to youth in contact with the law.^Footnote7 In fact, statistics from 1989 to 1999 indicate that the proportion of youth who were charged after being arrested by police ranged from 60% to 70%.^Footnote8

• Youth Criminal Justice Act, 2003–Present

  Given the increased incarceration rates for youth under the Young Offenders Act (YOA), there was significant political support for new policies that would encourage diversion and promote community responses by the youth criminal justice system. In 2003, the YOA was replaced by the Youth Criminal Justice Act (YCJA), the legislation currently governing Canada’s youth criminal justice system.

  The YCJA aims to promote proportionate and meaningful responses to youth offending, for example, through the participation of parents, family members, communities and others in the proceedings as well as through the rehabilitation and reintegration of youth offenders. The YCJA also recognizes that timely and informal criminal justice responses are often sufficient to address criminal offences. As a result, the legislation encourages the use of extrajudicial measures instead of custody and formal court proceedings. The number of youth diverted from criminal proceedings increased significantly following the YCJA’s enactment, in part because of the Act’s use of explicit language on the consideration and application of “extrajudicial measures.”^Footnote9 The YCJA also modified the use of adult sentences for youth found guilty of serious offences, such as attempted murder and sexual assault. Prior to the YCJA, youth charged with a serious offence could be transferred to adult court before being found guilty. If convicted, they would receive an adult sentence. This was considered unfair for a number of reasons: the type of sentence was determined before the youth was found guilty and these youth lost procedural protections offered to them in youth court. The YCJA eliminated the transfer of youth cases to adult court; instead, the law now requires that all accused youth appear and be tried before a youth court judge. If a young person, 14 years of age or older, is charged with an offence, a youth court judge can only impose an adult sentence if the prosecution applies for one and successfully demonstrates that the youth does not have reduced culpability or capacity for moral judgement, and that a youth sentence would not be sufficient to hold them accountable. While the YCJA has been amended over the years, the main purpose and guiding principles of the legislation remain relatively unchanged.

  Some experts argue that the youth criminal justice system should extend to people in their early twenties, a period during which individuals continue to mature and their brain continues to develop.^Footnote10 These experts suggest that by expanding the scope of the YCJA, the system may be better equipped to address the needs of, and produce better outcomes for accused young adults. They also note that the YCJA may allow for better protection against the negative effects of the criminal justice system, particularly during a period in a young adult’s life when criminal offending behaviours may be more present.

• Legal Rights and Special Protections for Youth

  Due process rights were first included in the Youth Offenders Act and continue to be guaranteed under the Youth Criminal Justice Act (YCJA). These rights are special legal protections afforded to youth, recognizing that, when compared to adults, they are more vulnerable, less mature, and have a lower capacity to make moral judgements due to their age. A few special legal protections are highlighted below.^Footnote11

  Right to counsel (Section 25 of the YCJA)

  Under the YCJA, youth have a right to legal representation at every step of the criminal justice process. If a young person is unable to secure a lawyer, the court will assist either by referring them to a legal aid program or directing that a lawyer be appointed to represent them. Police and other criminal justice officials are required to effectively communicate this right to youth. Many youth have a limited understanding of the law and how it might affect them.^Footnote12 Thus, this protection is essential for helping youth fully understand their legal rights and the legal processes they are facing.

  Admissibility of youth statements (Section 146(1) and 146(2) of the YCJA)

  The YCJA offers protection to youth regarding the admissibility of their statements or confessions, given that they generally do not understand their legal rights and may be more susceptible to the pressures of police interrogations.^Footnote13 For the statements to be admissible in court, there must be proof that the youth voluntarily gave the statement. There must also be proof that the person taking the statement clearly explained, in a way that is appropriate to the age of the youth, their right to silence, right to a lawyer and right to contact an appropriate adult and have them be present. Lastly, the youth must have had the opportunity to exercise these rights before their statement is made.

  Protection or privacy of youth (Sections 110 and 111 of the YCJA)

  The YCJA ensures that the identity of youth victims/survivors and accused/offenders under the age of 18 cannot be made public. Unless a special application is made,^Footnote14 this right ensures that the personal identifying information of youth remains confidential and that the criminal records of youth remain restricted or sealed from the public. This provision aims to protect youth from the short- and long-term negative effects of being labelled as a criminal, stigmatized and socially excluded, which may result from their involvement with the criminal justice system.^Footnote15

  Notice to and involvement of parents (Sections 3(c)(d), 5(c), 11, 25(7), 26, 31 of the YCJA)

  Under the YCJA, parents or caregivers must be informed immediately of the criminal measures or proceedings that involve their children such as, if their child is detained or arrested, or if their child is being dealt with an extrajudicial measure. They are also notified if their child is issued a ticket, or summons or appearance notice. If the parents of the youth are unavailable or unreachable, a notice must be provided to an adult relative or another adult who knows the individual and can provide assistance. The parents and caregivers are also allowed to accompany their child during police questioning and can attend court hearings. During a bail hearing, they may also put themselves forward as a “responsible person” who can care for and supervise the youth.

  Other special protections (Section 3(d) of the YCJA)

  Other special protections for youth include the right to be heard and to participate in the legal processes that affect them, the right of youth victims and survivors to be treated with courtesy, compassion, and respect, as well as the right of youth victims to participate in and be provided with information about the proceedings.