Legislative Summary
Bill C-25: An Act to amend the Youth Criminal Justice Act
Dominique Valiquet, Law and Government Division
Publication No. 39-2-LS-589-E
PDF 168, (16 Pages) PDF
2007-12-13

Table of Contents


Background

A.  Purpose of the Bill and Principal Amendments Made

Bill C-25:  An Act to Amend the Youth Criminal Justice Act was introduced by the Minister of Justice and Attorney General of Canada, the Honourable Robert Nicholson, and received first reading in the House of Commons on 19 November 2007.

Overall, the bill strengthens the provisions of the Youth Criminal Justice Act(1) on pre-trial detention and sentencing.  More specifically, it: broadens the possibility of pre-trial detention for a young person who represents a danger to the public or has previously failed to comply with conditions of release (clause 1);

  • broadens the possibility of pre-trial detention for a young person who represents a danger to the public or has previously failed to comply with conditions of release (clause 1);
  • adds the denunciation and the deterrence of unlawful conduct to the Act’s principles of sentencing (clause 2).

B.  Brief History of the Youth Criminal Justice Act

On 1 April 2003, the Youth Criminal Justice Act (YCJA) replaced the Young Offenders Act (YOA),(2) which came into force in 1984.

The YCJA is based on the document A Strategy for the Renewal of Youth Justice, published by the Government in May 1998 in response to the report entitled Renewing Youth Justice,(3) tabled by the Standing Committee on Justice and Legal Affairs in April 1997.

The YCJA sets out the principles, procedural rules and protective measures applicable in the context of criminal charges brought against young people under federal laws.  The minimum age of criminal responsibility under the YCJA and the YOA was set at 12.  No criminal charge may be brought against anyone who is under the age of 12.

The YCJA stresses rehabilitation and the needs of young people.  It also gives the courts great latitude in sentencing that involves committal to custody.

In October 2007, the Minister of Justice announced that a comprehensive review of the YCJA would be carried out in 2008.(4)

In November 2007, at a meeting of the federal, provincial and territorial ministers of Justice in Winnipeg, the provincial and territorial ministers discussed the need to amend the YCJA.(5)

C.  Statistics

1.  Crime Rates

Among Canadians aged 12 to 17, inclusively, the average annual crime rate is 7.5 offences per 100 population.(6)  In 2006, there was a 3% increase in the youth crime rate, the first such increase since 2003, the year the YCJA came into force.(7)  Broken down by type of offence, the total increase represents a 3% rise in violent crime (84 young people were charged with homicide, the highest level since 1961), a 3% drop in property crimes (in particular break-ins and motor vehicle thefts) and a 9% increase in other Criminal Code offences (such as mischief and disturbing the peace).(8)

In 2006, all provinces except Quebec, which saw a 4% reduction, reported increases in youth crime.  The most significant increases were in Prince Edward Island, Newfoundland and Labrador, Nova Scotia and Manitoba.(9)

A far-reaching study carried out by the Canadian Centre for Justice Statistics between 1995 and 2005 found that “[w]hile recorded criminal activity is fairly widespread among Canadian youth, the amount of recorded crime committed by most child and teenage offenders is quite small and concentrated among the less serious types of crime.”(10)

Between 1995 and 2005, 59% of the boys and 76% of the girls reviewed by the study committed only one recorded offence.(11)  A large majority of the offences were committed by a small minority of the young people:  10% of them were responsible for 46% of the offences.(12)

The Centre’s study found little evidence of specialization in any one type of crime.(13)  In most cases where such specialization was detectible, it involved property offences, which represented 47.3% of all offences.(14)  Crimes against the person represented 16.4% (9.9% being common assault) and drug-related offences represented 6.2% of cases.(15)

Lastly, the Centre concluded that the study’s findings “are generally consistent with the findings of similar research in other countries.”(16)

2.  Incarceration Rates

In October 2004, Statistics Canada noted that the incarceration rate for persons aged 12 to 17 in Canada in 2002-2003 was 13 per 10,000, the lowest in eight years(17) and 33% lower than in 1993-1994.  “Overall, the number of young people incarcerated has been decreasing during this period in parallel with a decline in the youth crime rate.”(18)

The table below shows the numbers of young people in custody, on remand (temporary detention) and on probation.

Youth Correction Services(19)

 

2000
2001
2002
2003
2004
Admissions to remand
15,055
15,359
14,648
12,392
15,312
Admissions to secure custody
6,958
7,385
4,814
3,238
2,758
Admissions to open custody
7,951
7,702
4,527
3,052
3,033
Admissions to probation
36,509
38,261
26,364
22,808
18,403

 

Time spent on remand is usually short:  in 2002-2003, 54% of youth remands lasted one week or less, 30% lasted between one week and one month, and 15% lasted between one and six months.(20)  Admissions to remand did, however, represent almost three quarters (73%) of total admissions to detention in 2003-2004.(21)

According to the same data, Aboriginal youth are overrepresented in the youth criminal justice system.  While Aboriginal young people comprised only 8% of Canada’s youth population in 2002-2003, they made up “44% of admissions to remand, 46% of sentenced custody admissions and 32% of probation admissions, and 21% of alternative measure cases reaching agreement.”(22)

D.  Nunn Commission of Inquiry

1.  The Commission of Inquiry

On 14 October 2004, a 52-year-old mother named Theresa McEvoy was killed in an automobile collision by AB, a 16-year-old.  AB, who was driving a stolen car at the time of the collision, had been released two days earlier despite 38 outstanding criminal charges against him.

On 29 June 2005, Nova Scotia launched a public inquiry to examine the way in which the charges against AB had been handled and other matters relating to his release.  The Honourable Justice D. Merlin Nunn was appointed to lead the inquiry.  On 5 December 2006, Commissioner Nunn submitted his report,(23) which contained 34 recommendations:

  • 19 recommendations on the need to simplify the administration of justice and improve accountability;
  • 6 recommendations on strengthening the Youth Criminal Justice Act (YCJA);
  • 9 recommendations on preventing youth crime.

2.  Recommendations on Protecting the Public and Custodial Remand

a.  Protection of the Public

To help solve the problem posed by the small group of dangerous and repeat offenders, Commissioner Nunn recommended including both short- and long-term protection of the public among the principles set out in section 3 of the YCJA.(24)  At the present time, only long-term protection is included.(25)

b.  Custodial Remand

Currently there is a presumption in favour of pre-trial release if the young person has not committed a “violent offence.”(26)  According to Commissioner Nunn, the YCJA unduly limits pre-trial detention.  To find a balance between the young person’s rights and public safety, he recommended expanding the definition of a “violent offence” to include “conduct that endangers or is likely to endanger the life or safety of another person.”(27)

There is also a presumption in favour of pre-trial release if the young person has no record of “a pattern of findings of guilt.”(28)  This presumption means that a young person who is facing other charges but has as yet no criminal record will probably not be held.  In order to allow for the detention of young persons accused of a series of crimes in rapid succession, Commissioner Nunn recommended replacing the obligation to demonstrate a “pattern of findings of guilt” with the obligation to demonstrate “a pattern of offences.”(29)

Commissioner Nunn also proposed the adoption of separate provisions for custodial remand, not dependent on the Criminal Code or on other YCJA provisions, as is currently the case.(30)

E.  Supreme Court of Canada Jurisprudence

1. R. v. B.W.P.; R. v. B.V.N.(31) (deterrence)

The Supreme Court heard an appeal from the sentences imposed on two young people found guilty of manslaughter (15 months of custody and probation for B.W.P.)(32) and aggravated assault (nine months of custody and probation for B.V.N.).(33)

In its evaluation of these sentences, the Court found that, under the YCJA as it stands, deterrence is not a principle of sentencing in the case of young people.(34)

While deterrence had to be taken into account under the Young Offenders Act,(35) the Court noted that the YCJA had brought in a different and entirely new sentencing regime.(36)

2.  R. v. C.D.; R. v. C.D.K.(37) (violent offence)

Currently, the YCJA provides for a presumption in favour of pre-trial release if (among other considerations) the young person has not committed a “violent offence.”(38)  The court may impose a sentence that includes custodial detention if the young person is found guilty of such an offence.(39)

Noting the absence of a legal definition, the Supreme Court defined a “violent offence” as “an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm”:(40)  murders, attempted murders, manslaughters and “serious violent offences.”(41)  The Court’s definition excludes all offences committed solely against property.(42)

Given that the YCJA was passed to reduce reliance on detention, the Court decided that the definition of a violent offence did not include offences involving the mere likelihood of bodily harm to another person.(43)  A definition that included such offences would be too broad.  The Court therefore chose to adopt a restrictive interpretation.

In this particular case, the Court decided that the evidence presented at the trial did not permit the conclusion that arson causing property damage, bearing arms or dangerous driving constituted “violent offences.”(44)

Description and analysis

Bill C-25 contains three clauses.  The first broadens the circumstances allowing for custodial remand, while the second adds denunciation and the deterrence of crime to the principles of sentencing.  Clause 3 provides for the bill to become law on a date to be determined by order of the Governor in Council.

A.  Pre-trial Detention (Clause 1)

As a general rule, the Criminal Code’s provisions on bail hearings apply to the release and detention of young people.(45)  The YCJA may nevertheless override those provisions by providing specific rules for young people.(46)

At present the YCJA contains a presumption against the pre-trial detention of young people.  However, this presumption does not apply, and an accused young person may be held until sentencing, in three specific cases:

  • when the young person is charged with a violent offence;
  • when the young person has in the past failed to comply with non-custodial sentences;
  • when the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt.(47)

The first clause in the bill provides that a judge may order the pre-trial detention of a young person only in the following circumstances:

  • in any of the three cases listed above, as provided for in the current YCJA;
  • when the young person is charged with committing an offence that endangered the public by creating a substantial likelihood of serious bodily harm to another person;(48)
  • when the young person has been found guilty of failing to comply with conditions of release;(49)
  • when there is a substantial likelihood that the young person will, if released from custody, commit a violent offence or an offence that otherwise endangers the public by creating a substantial likelihood of serious bodily harm to another person.(50)

According to the Department of Justice, this amendment to the YCJA was inspired by the Nunn Commission report.(51)  While the bill extends the possibility of pre-trial detention to a larger number of young people, the YCJA’s new rules in this regard remain more restrictive than those in the Criminal Code.

In no case may pre-trial detention be used as a punitive measure.(52)  The YCJA expressly provides that the court must take any time spent in pre-trial detention into account in the sentence it imposes.(53)  When calculating a custodial sentence, the court has the discretion to decide what weight to give pre-trial detention.(54)

B.  Denunciation and Deterrence (Clause 2)

The YCJA’s general sentencing goal is “to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.”(55)

At present the YCJA sets out principles to guide the court in determining appropriate sentences for young people.  These principles are as follows:

  • as set out in section 3, including:
    • addressing the circumstances underlying a young person’s offending behaviour;
    • long-term protection of the public;
    • rehabilitation and social reintegration;
    • fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity;
    • encouraging the repair of harm done to victims and the community;
    • respecting gender, ethnic, cultural and linguistic differences;
  • as set out in subsection 38(2), which provides that the sentence must:
    • never be greater than the punishment that would be appropriate for an adult;
    • be similar to the sentences imposed in the region on similar young persons (consistency in sentencing);
    • be proportionate to the seriousness of the offence and the degree of the young person’s responsibility for that offence (principle of proportionality);
    • consider all available sanctions other than custody that are reasonable in the circumstances, particularly in the case of an Aboriginal young person;
    • be the least restrictive sentence capable of achieving the purpose of sentencing;
    • offer the greatest likelihood of rehabilitating and reintegrating the young person;
    • promote the offender’s awareness of responsibility for the harm done.

Clause 2 of the bill, by amending subsection 38(2) of the YCJA, adds the following two principles of sentencing:

  • denouncing unlawful conduct; and
  • deterring the young person, and other young people, from breaking the law.

These two principles already form part of the sentencing framework for adults.(56)  The bill however makes the two principles subject to the fundamental principle of proportionality.  In R. v. B.W.P, the Supreme Court looked at deterrence as a sentencing principle:

Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct.  When deterrence is aimed at the offender before the court, it is called “specific deterrence,” when directed at others, “general deterrence.”  The focus of these appeals is on the latter.  General deterrence is intended to work in this way:  potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.  When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not.  Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime.  Those who advocate its retention are equally firm in their position and, in support, point to society’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle.(57)

Commentary

Opinion is divided on Bill C‑25’s usefulness and effectiveness.  Some people point to the higher youth crime rates in 2006 in certain parts of the country, such as Halifax, Toronto and Winnipeg, to justify the need for stiffer sentences,(58) while others argue that this was just a cyclical fluctuation and that we should continue to reduce reliance on incarceration.(59)

To critics of the bill, it represents a step backward.(60)  They point out that before the YCJA came into effect, Canada had the world’s highest youth incarceration rate, even higher than that of the United States.(61)  We should therefore continue to stress rehabilitation and reintegration into society, and avoid incorporating concepts applicable to adults into the YCJA.(62)  Community workers say the bill will increase the number of young people held in custody for minor offences,(63) thus misallocating the justice system’s resources.

Studies suggest that a punitive approach may be ineffective in combatting youth crime, since young people often act on impulse, without thinking about the possible consequences.(64)  A number of people, including the former attorney general and chief justice of Ontario, regard prevention as the key, rather attempted deterrence in the form of stiffer sentences.(65)  These critics feel that the government should look into the disturbing problem of the large number of inmates with mental health problems.(66)

By broadening the rules on pre-trial detention, Bill C‑25 could be contravening the fundamental principle of section 29(1) of the YCJA, which holds that pre-trial detention must not be used as a substitute for more appropriate youth protection and mental health services, or other social services.(67)  According to Martha Mackinnon, a worker with the organization Justice for Children and Youth, the bill gives too much power to the police, since they will be encouraged to inflate the number of charges in order to ensure that a young person is detained.(68)

The opposing argument is that the bill targets only the small group of young people who represent a real danger to society.(69)  The bill plugs a serious loophole in the youth justice system and gives more weight to the needs of victims and the community.(70)  Nova Scotia’s Minister of Justice and the provincial government supported the bill, calling it a “positive next step” in the war on crime.(71)

While Commissioner Nunn does not think that the bill makes radical changes to the existing system,(72) he is pleased that it opens the door to amendments to the YCJA.  Halifax’s deputy police chief Chris McNeil argues that the bill does nothing to implement most of the recommendations in the Nunn report.(73)  They would both like to see in-depth amendments to the YCJA, especially as there are those who maintain that the YCJA is particularly complex and poorly understood by both lawyers and judges.(74)

Although the bill does not include the automatic imposition of adult sentences on young people found guilty of serious violent offences or on repeat offenders, because the Government preferred to wait for the Supreme Court’s ruling in R. v. D.B.,(75) the Minister of Justice has announced a full review of the YCJA in 2008.(76)  Bill C‑25 thus represents just a first step in the revamping of the youth criminal justice system.


Endnotes

* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force.
  1. S.C. 2002, c. 1.
  2. R.S.C., 1985, c. Y-1 (repealed).
  3. For further details on the differences between the YCJA and the previous legislation, see David Goetz, Bill C‑7:  The Youth Criminal Justice Act, LS-385E, Parliamentary Information and Research Services, Library of Parliament, 12 February 2001.
  4. Department of Justice of Canada, “Proposed Amendments to the Youth Criminal Justice Act,” backgrounder, November 2007.
  5. See the press release from the Canadian Intergovernmental Conference Secretariat, 16 November 2007.
  6. Canadian Centre for Justice Statistics, Statistics Canada, “The Development of Police-Reported Delinquency among Canadian Youth Born in 1987 and 1990,” catalogue no. 85-561-MIE2007009, November 2007, p. 10.
  7. Canadian Centre for Justice Statistics, Statistics Canada, “Canadian Crime Statistics,” catalogue no. 85-002-XIE, vol. 27, no. 5, July 2007, p. 6.
  8. Ibid., p. 6.
  9. Ibid., p. 6.
  10. Canadian Centre for Justice Statistics, Statistics Canada, “The Development of Police-Reported Delinquency among Canadian Youth Born in 1987 and 1990,” catalogue no. 85-561-MIE2007009, November 2007, p. 58.
  11. Ibid.
  12. Ibid.
  13. Ibid.
  14. Ibid., p. 10.
  15. Ibid.
  16. Ibid., p. 6.
  17. Statistics Canada, “Youth custody and community services,” The Daily, 13 October 2004.
  18. Ibid.
  19. Statistics Canada, “Youth correctional services, admissions to provincial and territorial programs”.
  20. Canadian Centre for Legal Statistics, Statistics Canada, Juristat, “Youth Custody and Community Services in Canada, 2002/03,” no. 85-002-XPE, vol. 24, no. 9, October 2004, p. 6.
  21. Lee Tustin and Robert E. Lutes, A Guide to the Youth Criminal Justice Act 2007/2008, LexisNexis, Markham, June 2007, p. 53.  For purposes of comparison, this figure was 60% in 1997-98 under the former Young Offenders Act system (Statistics Canada, “The use of custodial remand,” The Daily, 25 November 1999).
  22. Canadian Centre for Legal Statistics, Statistics Canada, Juristat, “Youth Custody and Community Services in Canada, 2002/03,” no. 85-002-XPE, vol. 24, no. 9, October 2004, p. 7.
  23. Report of the Nunn Commission of Inquiry, Spiralling Out of Control:  Lessons Learned from a Boy in Trouble, December 2006, p. 227.
  24. See recommendation 20.
  25. Par. 3(1)(a) and s. 38.
  26. Subs. 29(2) and par. 39(1)(a).
  27. See recommendation 21.
  28. Subs. 29(2) and par. 39(1)(c) of the YCJA.
  29. See recommendation 22.
  30. See recommendation 23.
  31. [2006] 1 S.C.R. 941.
  32. The trial judge had ordered that B.W.P. spend one day in open custody and the remainder of the 15 months under conditional supervision in the community.
  33. Closed custody had been ordered.
  34. Par. 4.
  35. To a lesser extent than in the case of adult offenders, however (R. v M. (J.J.), [1993] 2 S.C.R. 421, 434).
  36. Par. 4 and 21.
  37. [2005] 3 S.C.R. 668.
  38. Par. 29(2).
  39. Par. 39(1)(a) of the YCJA.
  40. Par. 17.
  41. Par. 65.  Subpar. 2(1) of the YCJA defines a “serious violent offence” as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm.”
  42. Par. 51 and 52.
  43. Par. 49, 76 and 77.
  44. Par. 88 to 92.
  45. S. 28 of the YCJA.
  46. For a detailed analysis of the pre-trial release regime, see Nicholas Bala, Youth Criminal Youth Law, Irwin Law, Toronto, 2003, p. 248 et seq.
  47. Subs. 29(2) and par. 39(1)(a) to (c) of the YCJA.
  48. New par. 29(2)(a) of the YCJA.
  49. New par. 29(2)(b) of the YCJA.  See also, for information only, subpar. 515(6)(a)(i) and par. 515(10)(a) of the Criminal Code.
  50. New subs. 29(3) of the YCJA.  Compare subs. 515(10) of the Criminal Code.
  51. Department of Justice of Canada (2007).  See in particular recommendations 21 and 23.  Note that the Bill has not adopted recommendation 22, which suggested replacing the obligation to demonstrate “a pattern of findings of guilt” with “a pattern of offences.”
  52. See subs. 29(1) of the YCJA and Bala (2003), p. 412.
  53. Par. 38(3)(d).
  54. See R. v. B. (T.), (2006) 206 C.C.C. (3d) 405 (C.A. Ont.).
  55. Subs. 38(1).
  56. Par. 718(a) and (b) of the Criminal Code.
  57. R. v. B.W.P.; R. v. B.V.N, [2006] 1 S.C.R. 941, par. 2 and 3.
  58. Mindelle Jacobs, “Youth Violence is a National Pastime,” Whitehorse Star, 26 November 2007, p. 8; Iain Hunter, “Tough Talk on Youth Crime:  Good Politics, Bad Policy,” [Victoria] Times Colonist, 28 November 2007, p. A12.
  59. Tonda MacCharles, “Youth Crime Bill Pushes Deterrence,” The Toronto Star, 20 November 2007, p. A01; Canadian Press, “Incarceration Rate Rises for the First Time in a Decade; But StatsCan Report Shows Number of Youth Behind Bars Drops, Continuing Decline that Began with Youth Justice Act,” Times & Transcript, Moncton, 22 November 2007, p. C1.
  60. Barbara Benoliel and Terance Brouse, “‘Tough-on-Crime’ Policies Actually Make Us Less Safe,” The Toronto Star, 6 December 2007, p. AA08.
  61. Bernard Richard, “‘Young Offenders’ aren’t Adults,” New Brunswick Telegraph-Journal, Saint John, 26 November 2007, p. A7.
  62. Benoliel and Brouse (2007); Richard (2007).
  63. Benoliel and Brouse (2007).
  64. Hunter (2007); Jim Kelly, “Tough Not Enough; Former Attorney General Says Prevention is Key to Fighting Youth Violence,” Thunder Bay Chronicle-Journal, 27 November 2007, City News; MacCharles (2007).
  65. Kelly (2007); James Bradshaw, “Review on Violence:  Youth Crime Panel Pushes Prevention over Enforcement,” The Globe and Mail, Toronto, 24 November 2007, p. A21.
  66. Richard (2007).
  67. Ibid.
  68. MacCharles (2007).
  69. Jacobs (2007).
  70. La Presse canadienne, « Les jeunes délinquants écoperont », Le Droit, Ottawa, 20 November 2007, p. 14; Hunter (2007); Lorrie Goldstein, “No Quick Fix for Youth Crime Act,” Ottawa Sun, 26 November 2007, p. 14.
  71. Michael Tutton, “Youth Crime Bill Fixes ‘Do Nothing’; Protection of Public must be Primary Principle of the Act, says Halifax Deputy Police Chief,” Chronicle-Herald, Halifax, 4 December 2007, p. A1; Brian Flinn, “Youth Justice Act Proposed Changes Effective:  Minister,” Daily News, Halifax, 5 December 2007, p. 10.
  72. Flinn (2007).
  73. Flinn (2007); « Ottawa veut faciliter l’emprisonnement des jeunes contrevenants », Le Journal de Montréal, 20 December 2007, p. 18.
  74. “Crime Bill:  When Youths Reach the Courts,” editorial, The Globe and Mail, Toronto, 21 November 2007, p. A22.
  75. Department of Justice of Canada (2007).
  76. “Parliamentary Agenda:  Tories Hope Youth Crime Legislation will Shift Focus from Schreiber Saga,” The Globe and Mail, Toronto, 20 November 2007, p. A4.

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