Current research and program evaluations should be taken into account when making any legislative changes concerning young offenders.
(This article was translated from French.)
It’s stating the obvious, and all the practitioners on the ground will tell you, serious delinquency is fuelled by a host of social and psychological factors, which have been clearly established since the existence of criminology. Whether it is a question of social exclusion, inequality of opportunities, childhood abuse, or neglect, it has been shown that environmental contexts that are negative to social and psychological development are closely linked to delinquency in early adolescence or even before.
That is why is crucial to identify the children who are most at risk from a very early age. But to be able do this, we will have to improve school and social programs for children and not cut them.
Even so, there will still be adolescents who exhibit serious and recurring delinquent behaviour. For these youth, we have a duty to ensure we can count on the best means possible to help them reintegrate positively into society. So what are the ingredients for success in the social reintegration of young offenders who are their own worst enemies?
In my view, we will have to work on several fronts at once: we must ensure that we have a progressive legislative framework, and the best evaluative tools. We must also draw on recognized and proven approaches in our interventions, support partnerships between all the actors, and promote the ongoing advancement of knowledge through research and evaluation.
Criminal legislation dealing with adolescents is relatively recent across the world. In Quebec, measures that specifically dealt with the issue of minors presenting with behavioural or delinquency problems were introduced only in the 19th century. The Industrial Schools Act (1874) and the Reform School Act established the first institutions that treat minors differently from adults.
In 1908, the Parliament of Canada adopted the Juvenile Delinquents Act. This law officially established a distinct penal system for children (it applied to those aged 7 to 18), and it also considered a young delinquent as a still developing person who needed help and advice. It urged judges to act as good fathers of the family and take the necessary means to guide the young person back on the right path. However, this law did not grant adolescents the same rights as adults. Rather, its aim was to protect young people, not to make them more responsible.
The Young Offenders Act replaced the Juvenile Delinquents Act in 1984, after several years of work. This law recognized juveniles as subjects of law and afforded them the same guarantees to protect their rights as it did adults. The law focused on making adolescents take responsibility for their crimes, maintaining that socially integrating offenders would make them more responsible, and would also better protect society. For all those engaged in the field in Quebec, this law offered a reasonable balance between accounting for the needs of young people and protecting society. It favoured a rehabilitation approach ─ which in Quebec has always been advocated for juvenile delinquency ─ and it opened the door to the decriminalization of minor offences.
All the research and scholarship in criminology indicates that more repressive measures are not the best way to protect communities.
Despite all this, since the late 1990s, and even more so in the 2000s, Canada seems inclined to toughen the criminal laws for adolescents. The media coverage of a few very serious, but exceptional, situations plays on the general sense of insecurity and leads politicians to want to deal more harshly with crimes committed by adolescents. Toughening the Young Offenders Act has thus become an election issue, which is how the Youth Criminal Justice Act was adopted in 2001 and implemented in 2003. This law imported the principles of adult penalties from the Criminal Code: now it is no longer a question of measures to be taken, but of sentencing. This has changed the hierarchy of principles: the emphasis has shifted to protection of the public and the proportionality of the sentence relative to the offence. Now the judge of the Justice Québec’s Youth Division can pass adult sentences on adolescents. At the same time, there is even more focus on the decriminalization of minor crimes, and the position of victims is being reinforced. These are positive developments.
In 2012, the adoption of the Safe Streets and Communities Act takes the repressive aspect a step further by considering general deterrence as a factor that can be taken into account in the pronouncement of a sentence, and by allowing the court to lift the publication ban on the identity of an adolescent who has committed a crime.
Yet research shows that more repressive laws have no impact on reducing delinquency; the opposite is true. In this regard, we should not follow the example of our southern neighbour: with the highest incarceration rate in the world, the United States is becoming increasingly violent, and it has a much higher crime rate than does Canada. For example, in 2012, 14, 827 murders were reported in the United States, compared with 543 in Canada.
It is perhaps more appropriate for Canada to look to other countries as examples to follow. For instance, the European Rules for Juvenile Offenders Subject to Sanctions or Measures, adopted in November 2008 by the justice ministers of the Council of Europe member states, incorporate several of the guiding principles and rules from the United Nations Guidelines and Rules for the Prevention of Juvenile Delinquency. The principles found in the European Rules guide member states in developing legislation on juvenile delinquency. The following are some excerpts:
- The sanctions or measures…shall be…based on the principles of social integration and education and of the prevention of re-offending.
- The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed… and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports.
- In order to adapt the implementation of sanctions and measures to the particular circumstances of each case, the authorities responsible for the implementation shall have a sufficient degree of discretion…
- Mediation or other restorative measures shall be encouraged at all stages of dealing with juveniles.
- The juvenile’s right to privacy shall be fully respected…
- All staff working with juveniles perform an important public service. Their recruitment, special training and conditions of work shall ensure that they are able to provide the appropriate standard of care to meet the distinctive needs of juveniles and provide positive role models for them.
Canada is in the avant-garde among nations in social policies. Nevertheless, in the past decade there has been an continuous tendency to toughen penal laws, despite the fact that all the research and scholarship indicates that more repressive measures are not the best way to protect communities.
The application of the Youth Criminal Justice Act has given social workers and legal stakeholders in Quebec an opportunity to think collectively about the values, principles and knowledge on which they should base their interventions. This has allowed them to adopt a common vision and orientation as to how to apply the law. As well, they have scientifically examined the repercussions of their actions in an exhaustive study. So when in the future politicians make changes to the legislation to do with justice for minors, they must take account of the current scholarship on the topic, as well as the evaluations of existing programs. While this might not be too advantageous electorally, it is certainly the responsible approach.
This article is part of the Widening the Lens on Criminal Justice Reform special feature.
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