How do we define the line between youth and adulthood? In Canada’s criminal legal system, it’s quite firmly drawn at the age of 18.
However, a large body of research into human development has found that we continue to mature biologically, psychologically and socially well beyond our 18th birthday.
That’s a problem, as outlined in a recent report by the Correctional Service of Canada which found that emerging adults (those aged 18-25) who are released into the community after incarceration for a prior offence have greater reoffending rates than any other age group.
Inside correctional facilities, emerging adults are the age group with the highest rates of disciplinary infractions, altercations, self-harm, suicide attempts and admissions to solitary confinement, according to a 2017 report by the Office of the Correctional Investigator.
This unique set of challenges may be because our brains and our social supports are still typically under construction in our early 20s.
Canada should therefore follow the example of most European countries and raise the maximum age at which juvenile sentencing rules and sanctioning options can apply. Although we suggest a full review from the Commons justice committee to determine the most appropriate approach, evidence on human development suggests raising the age into the range of 22 to 24 years.
In the brain, the area associated with planning, judgment, logic and critical thinking – known as the prefrontal cortex – is typically not fully active until a person is in their mid-20s. Areas related to regulating emotions and considering risks and rewards are also typically still developing until at least the early 20s. Until these areas of the brain are fully functioning, we tend to remain similar to teenagers in our susceptibility to irrational and impulsive decision-making.
Insights into social development further highlight some similarities between teenagers and emerging adults.
The theory of life-course criminology posits that significant events or “turning points” throughout our lives decrease the chance that we will engage in crime by increasing sources of control over our behaviour. These turning points may include obtaining meaningful employment, getting married or having a child.
When the youth criminal justice system was created in the early 1900s, it was likely that one or all of these turning points would have been reached by age 18. Today, however, the average person does not reach these traditional milestones until at least the mid-20s, according to data from Statistics Canada on marriage, childbirth and participation in post-secondary education.
Therefore, the current age of majority in Canada’s criminal legal system is not based on any recent body of evidence on biological, psychological or social maturation. So, how did we land on the age of 18 as the line between youth and adult?
Before the early 20th century, there was no separation between youth and adults who committed a crime.
The first piece of youth justice legislation, the Juvenile Delinquents Act (JDA) of 1908, brought forward the idea that young people who committed crimes were simply suffering, disadvantaged children in need of social assistance. To reflect this new sense of sympathy, the maximum age for the new youth justice system was set at 16 in most provinces.
In 1965, the federal Department of Justice’s committee on juvenile delinquency published a report calling for drastic change in the existing youth justice system. To the committee’s credit, its report mentioned that the reduced psychological maturity of young people and their increasing participation in higher education favoured raising the age significantly, perhaps even to 21.
But the committee ultimately concluded that raising the age to 18 from 16 was the most appropriate approach because it would “involve less by way of administrative change or adjustment across the country.”
After many years of drafting and debating, the Young Offenders Act (YOA) replaced the JDA in 1984 and set a maximum age of 18 for the youth justice system. Although the YOA was replaced by the Youth Criminal Justice Act (YCJA) in 2002, the age of 18 did not change as the marker separating youth and adults.
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As it stands, those aged 12 to 17 fall under Canada’s YCJA, which emphasizes that the “greater dependency of young persons and their reduced level of maturity” requires prioritizing rehabilitation and reintegration over punishment.
Once a person reaches the age of 18, they are instead subject to the court and correctional systems under the Criminal Code, which gives greater weight to protecting society, as well as denouncing and deterring unlawful conduct. It does not require consideration of age or level of maturity when determining an appropriate sentence.
The history of Canada’s youth justice system shows that change in the system’s maximum age is not unprecedented. Raising the age once again to better reflect current knowledge of human development is an attainable goal. We can look to youth justice practices from across the globe as examples.
Since 1953, juvenile courts in Germany have been responsible for people up to age 21. Youth who receive a prison sentence can be sent to a juvenile custody facility until age 24.
Comparing reoffending rates after release from custody may illustrate the potential advantage of housing emerging adults in a youth facility, rather than with older adults.
About 35 per cent of German youth aged 14-24 who are released from a juvenile custody facility reoffend and return to custody within three years. In Canada, this rate is about 50 per cent, according to data from the Correctional Service.
In the Netherlands, youth up to age 23 may undergo trial in a juvenile court and receive a juvenile sentence. This has been the case since 2014 when the Dutch government passed legislation directly based on evidence about young adults’ ongoing biological, psychological and social development.
Similar specialized approaches for emerging adults in the justice system are actually commonplace across Europe. Twenty European countries allow emerging adults to receive juvenile sentences. Eighteen European countries require special sentencing rules for emerging adults in adult courts.
Eighteen countries in Europe have a maximum age of 21 for when a person can be sent to a juvenile correctional facility. Six countries have a maximum age of 23 and five countries have a maximum age of 24 or older.
Across Europe, only eight countries – Belgium, Bulgaria, Estonia, Ireland, Latvia, Spain, Turkey and Ukraine – have no specialized rules for the treatment of emerging adults in the legal system. This is the category that Canada fits into as well.
Canada should therefore continue the trend seen in past youth justice reforms in Canada. By increasing the age of majority in the criminal justice system, those in their early 20s can receive treatment based on rehabilitation and reintegration, and make a safe return to our communities, rather than a risky one.
Acknowledgments: This research was funded by the Canada Graduate Scholarship Program of the Social Sciences and Humanities Research Council of Canada. The authors would like to acknowledge Dr. Kaitlyn McLachlan at the University of Guelph for her -input.