JUSTICE

Children of crime

A fierce debate over punishing the young

RIC DOLPHIN January 30 1989
JUSTICE

Children of crime

A fierce debate over punishing the young

RIC DOLPHIN January 30 1989

Children of crime

JUSTICE

A fierce debate over punishing the young

At about 7:15 on the morning of April 12, 1985, a dark-haired boy of 14 walked into the bedroom of his family’s split-level Scarborough, Ont., home with a .303-calibre rifle. Then he fired a blast from the powerful hunting weapon into each of his sleeping parents’ heads. The boy then went downstairs to the living room, where his seven-year-old sister, cuddling her Cabbage Patch doll, was watching television. He shot her fatally in the stomach. Following the shootings, the young gunman went to his junior high school. Then he went to a movie. Later, police arrested him at a friend’s house and charged him with three counts of first-degree murder. He told officers that an alter ego called “Eddie,” modelled on the demonic mascot of his favorite heavy-metal rock band, Iron Maiden, had influenced his actions.

On Feb. 6, the convicted killer, by then 18, is scheduled for release from the maximum-security Syl Apps Youth Centre in Oakville, Ont.,

after serving the full three-year maximum sentence for first-degree murder stipulated by the controversial, five-year-old Young Offenders Act. The imminent release has stirred alarm among some Scarborough residents. Jim Karygiannis, the Liberal member of Parliament for Scarborough-Agincourt, said that he received about 30 telephone calls from constituents who said that they were worried the young man will return to Scarborough. The case also has given new weight to long-standing criticism of the act by police and justice officials across the country. Said John Nunziata, a Toronto MP who is the Liberal party’s solicitor general’s critic in the House of Commons: “I don’t think that many people would agree that someone who commits a triple murder should serve three years and then be released.”

The act, which governs the treatment of accused criminals between the ages of 12 and 17, has been under fire ever since it came into effect in 1984. The 1908 Juvenile Delinquents

Act, which it replaced, covered young offenders between the ages of 7 and 17. Under that act, youngsters convicted of crimes were considered to be “misguided children.” Judges could sentence them to training schools or rehabilitative programs for periods that correctional authorities decided upon, on the basis of the child’s progress.

In an effort to find a more equitable way of dealing with young criminals, the Young Offenders Act, passed by Parliament during the majority government of Prime Minister Pierre Trudeau, aimed at giving young offenders the same right to “due process of law” as adult offenders, while recognizing their special needs. On the theory that long sentences are unlikely to help rehabilitate young offenders, the new act specifies relatively short terms for offences, including a three-year maximum term for serious crimes including murder and aggravated sexual assault. To help young offenders make a new start in life, the act also forbids the publication of their names or photographs—and requires authorities to destroy all of a young offender’s court records five years after sentencing.

Police say that the act, while undermining respect for the law by young criminals, often makes it difficult for them to apprehend offenders because they cannot publicly identify young suspects unless they are considered dangerous. For their part, lawyers and social workers involved with young offenders express concern that the act has removed the discretionary sentencing powers that the correctional authorities were able to exercise under the old Juvenile Delinquents Act, which allowed more lenient treatment for youngsters who showed signs of being capable of rehabilitation. Under the new act, said Peter Jaffe, director of the family court clinic in London, Ont., courts are now “focusing on the offence and not the offender,” with the result that more young offenders are being sent to jail—though often for shorter terms than under the old law.

Critics of the act cite the sentence given the Scarborough killer as an example of a major flaw in the act. Ontario Attorney General Ian Scott said that his department has been lobbying Ottawa for three years to amend the act to include stiffer penalties for major crimes. Provincial justice officials—who are responsible for administering federal criminal law—have held meetings with federal counterparts to discuss changes in the act since it became law. So far, Parliament has passed several amendments, including a provision for longer sentences for young offenders who commit offences in prison.

Still, the mild sentence imposed on the Scarborough killer resulted at least partly from a miscalculation on the part of the Crown attorney who prosecuted the case. Under the Young Offenders Act, provincial justice officials could have opted to have the accused 14year-old tried in regular court under the Criminal Code. Instead, they decided to try him under the Young Offenders Act in the belief that the testimony of two psychiatrists who declared that the boy was legally insane would result in his being sent to a psychiatric institution for an indefinite period. At the trial in 1985, both the defence and prosecution lawyers were stunned when Judge Ross C. Ball ruled that the boy was sane and guilty of first-degree murder under the act. Said defence lawyer John Hamilton: “There was no doubt in our minds the boy was insane. It’s pretty scary that he’s going to be walking the streets again next month.”

As a result of being convicted under the act, the Scarborough killer escaped the severe sentence—as well as the stigma—that an adult murderer faces. If he had been found guilty in adult court and received the mandatory life sentence, he would have faced 25 years in prison before being eligible for parole. As well, under the act, not only will court records of his murder conviction be destroyed but the killer will not be required to report to any correctional services official—a condition for releasing most adult offenders.

Critics say that a basic flaw in the Young Offenders Act is that, in an effort to encourage rehabilitation, the act makes no provision for long sentences. The act, said Edward Greenspan, a prominent Toronto criminal lawyer, “tries to be all things to all people. It attempts to fully extend the benefit of equal protection of the law to juveniles while firmly holding on to the rehabilitative model which was the touchstone of the Juvenile Delinquents Act.” At the same time, psychologist Jaffe says that, although the sentences are lighter, more young people are being incarcerated now. According to a study conducted by Jaffe, between 1981 and 1982 only 12.6 per cent of 12to 15-yearold offenders were sentenced to closed custody

in Ontario. In 1986-1987, that figure had risen to 31 per cent. At the same time, Jaffe noted that in his city the incidence of recidivism—the committing of further crimes—among young offenders rose alarmingly to 56 per cent from 27.5 per cent.

Jaffe said that the increased recidivism rate probably reflects the fact that, under the act, courts are placing more emphasis on prison sentences and less on rehabilitative measures. But some police officers argue that the sentences provided for under the act are too lenient for some young criminals. Discussing the often-violent activities of Vancouver’s growing number of youth gangs, the city’s

police chief, Robert Stewart, told a conference on family courts last March that “the Young Offenders Act is totally inappropriate to these gangs because they do not need protection. In reality, it is society that needs protection from them.”

The act also has come under fire for eliminating the prosecution of children between 7 and 12 on the grounds that younger children could be helped more by counselling outside the formal judicial system. Although children of that age were rarely prosecuted under the old act, police officials say that the complete exclusion of younger children gives some young offenders a dangerous immunity. Some police officers say that, as a result, children under 12 can now be used by older criminals. One way is for the adults to use children as “mules” to help sell drugs or steal from stores. Said Wayne Hollett, director of the Halifax branch of the Atlantic Child Guidance Centre: “I share the view that it hasn’t been the most helpful legislation. My main criticism is that kids under 12 don’t have to accept responsibility.”

Meanwhile, faced with the inherent problems of the act, courts across the country have adopted different approaches for dealing with young offenders who commit serious crimes. Two weeks ago, a man who was 17 when he fatally shot a Matsqui, B.C., taxi driver was sentenced to life imprisonment after being found guilty of murder in adult court. But in other similar crimes committed by young offenders and tried in adult court, judges elsewhere in the country—who are often reluctant to place young people among hardened criminals in federal penitentiaries—have referred the cases back to family court on appeal. And two weeks ago, the Ontario Court of Appeal justices overturned a lower court’s decision to have three male youths, who had sexually assaulted a 14-year-old Brampton, Ont., girl over a period of three days, transferred to an adult court.

For all of its perceived shortcomings, the Young Offenders Act is seen by many as an improvement over the old legislation, under which judges could incarcerate children merely for buying tobacco. Said Nicholas Bala, a professor of children’s law at Queen’s University in Kingston, Ont.: “Young people make mistakes; it’s a part of growing up and testing the limits of society. So we want to give them a second chance.” As admirable as those principles may be, the case of the Scarborough murderer has caused many critics to raise new and troubling questions about the controversial Young Offenders Act.

RIC DOLPHIN