After 22 years of cross-Canada consultations, federal-provincial disputes and repeated delays, the Young Offenders Act finally comes into law this week, with new and tougher provisions to deal with young people who commit crimes. The legislation, replacing the 1908 Juvenile Delinquents Act, applies to federal criminal offences. It creates a new system of “youth courts,” injects new formality into courtroom procedures and grants rights such as guaranteed access to legal counsel. But in the end, Solicitor General Robert Kaplan proclaimed the legislation without waiting for the conclusion of federal-provincial financial negotiations. Not one of the provinces has signed the cost-sharing agreement. As a result, young offenders will encounter confusion as police, prosecutors, judges and other court officials scramble to implement and enforce the act. Nova Scotia family court Judge Timothy Daley, for one, predicted “utter chaos.”
Most judges, lawyers and children’s rights activists agree with the thrust of the new legislation, but many are concerned that it is full of contradictions. On the one hand, said Brian Ward, executive director of the Ottawa-based Ca-
nadian Council on Children and Youth, the new youth courts will no longer treat 12to 17-year-olds who contravene federal laws as misguided adolescents in need of gentle discipline, but as young people who are responsible and accountable for their crimes. On the other hand, said Ontario family court Judge Peter Nasmith, a 17-year-old who committed murder previously could have received a life sentence, whereas now his maximum sentence would be only three years in some cases.
Other key reforms include:
Age: In keeping with the Charter of Rights and Freedoms, which prohibits discrimination on the basis of age, the act stipulates that young people up to the age of 18, in all parts of the country, are juveniles. Until now, all provinces except British Columbia, Manitoba, Quebec and Newfoundland considered those under 16 to be juveniles. It also absolves children under 12 of criminal responsibility, unlike the old law, which applied to children as young as seven.
Sentences: Judges may not impose prison sentences longer than three years or fines of more than $1,000. Previously, sentences were often openended, with the result that some juveniles served longer sentences than
adults for the same crime. For particularly serious crimes, such as murder and sexual assault, judges now will have more specific authority to transfer youths to the adult courts.
For less serious offences, such as shoplifting or vandalism, juveniles can now avoid the court process altogether under a system known as “diversion.” But first they must admit guilt and agree to conditions that include performing community work, attending counselling or compensating the victim.
Procedures: The act
opens the doors of juvenile courts to the public, but it retains the existing ban on publication of the name of the accused. And, for the first time, young offenders will be guaranteed the right to bail in all provinces and the right to appeal a sentence.
Parliament actually passed the legislation in 1982, but provincial dissatisfaction with the federal government’s cost-sharing proposals caused a two-year delay in its enactment. Original federal estimates placed the cost of the changes at $50 million. But the provinces now argue that the new detention facilities, extra police and Crown prosecutors that the legislation calls for will raise that bill to more than $250 million. In February, as well as cost sharing, Kaplan offered about $45 million for ongoing expenses, a sum that Ontario Social Services Minister Gordon Walker dismissed as “picayune.”
Because of the financial uncertainties, Nova Scotia has not yet held training courses for its judges. In British Columbia there is no system for providing the medical or psychological assessment of offenders that courts can now demand, and the province has not yet enacted necessary legislation to deal with provincial offences that the federal act does not cover. Until those statutes are in place, judges will not know how to sentence juveniles caught stealing a car or committing other provincial offences. But for all the drawbacks, children’s rights advocates are pleased to see the act. Said Ward: “I would not want to delay children’s rights any longer.” -ANN WALMSLEY in Toronto.
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