NOTE
The Young Offenders Act: Principles and Policy – The First
Decade in Review”
It has been eleven years since the Parliament of
Canada passed into law’the Young Offenders Act,
which serves today as Canada’s guiding piece of
juvenile justice legislation. When the legislation was
first passed in 1982, it was received with substantial
support from across the ideological spectrum. Today,
however, that support has eroded considerably and a
consensus has developed that reform to the legisla-
tion is necessary. In this note, the authors argue that
the growing dissatisfaction with the Act can be traced
in large part to two fundamental types of ambiguities
contained within the Act. First, the Act as a whole
represents a compromise between a variety of often
contradictory philosophies. Second, the central and
guiding principles contained within the Act lend
themselves to a multiplicity of possible interpreta-
tions. These ambiguities, the authors argue, have
resulted in an unacceptable level of judicial discre-
tion and a lack of consistency in the law.
Building upon these criticisms, the authors pro-
pose that the general guiding principles contained in
the Act’s “Declaration of Principle” should be re-
moved and replaced with more specific and contex-
tual principles. In the first part of the note, the
authors examine the twenty-year political and philo-
sophical process leading up to the passage of the Act
in 1982. They argue that, while important and valid
policy proposals were made during the 1960s and
1970s, many of the suggested reforms to juvenile
justice were lost during the late 1970s when impor-
tant philosophical and political compromises were
made during the drafting process for the Act. In the
second part of the paper, the authors demonstrate
how these compromises resulted in philosophical
and linguistic ambiguities in the legislation itself by
analysing the central principles of “special needs,”
“protection of society” and “least possible interfer-
ence with freedom” used throughout the Act.
II y a maintenant onze as, le Parlement du
Canada adopta la Loi sur les jeunes contrevenants,
qui demeure ]a principale loi r6gissant les rapports
entre les jeunes et le syst~me judiciaire. Lors de son
adoption en 1982, la Loi fut accueillie avec enthou-.
siasme par tous les courants id6ologiques. Aujour-
d’hui, cet appui s’effrite, et un consensus s’est d6ve-
lopp6 voulant que ]a Loi soit modifi6. Dans cette
note, les auteurs pr6tendent que ce nouveau consen-
sus s’explique par deux ambigu’t.s fondamentales
dans la Loi. Premi~rement, la Loi est le fruit d’un
compromis entre plusieurs philosophies contradic-
toires. Deuxi~mement, les principes fondamentaux
6nonc6s dans la Loi sont susceptibles d’une multipli-
cit6 d’interpr6tations diffdrentes. Ces ambigulit6s,
nous disent les auteurs, conftrent trop de discr6tion
aux juges et rendent la Loi incohfrente.
Poursuivant leur analyse, les auteurs sugg~ent
que les principes g6n6raux 6nonc6s dans la o D6cla-
ration de principes >> de la Loi soient supprim6s et
remplacds par des principes plus limitds et plus pr6-
cis. Dans la premiere partie, ils examinent
‘6volu-
tion politique et philosophique durant les vingt ans
prdc6dant l’adoption de ]a Loi. Les auteurs pr6-
tendent que bon nombre d’iddes intdressantes propo-
sdes au cours des annes 60 et 70 furent abandonnfes
dans d’importants compromis philosophiques et
politiques bt la fm des annfes 70 au moment de la
r daction de Ia Loi. Dans Ia deuxi~me partie, par le
biais d’une analyse des principes de < besoins sp-
ciaux >>, ( la protection de la socit6 i et (< un mini-
mum d'entraves >>, les auteurs dfmontrent que ces
compromis ont donnd lieu A des ambigit~s philoso-
phiques et linguistiques dans Ia Loi elle-meme.
* The authors of this Note are: Janet Bolton, Jane Caskey, Suzanne Costom, Richard Fowler,
Sivan Fox, Kirsten Hillman, Matthew Taylor, Rhonda Yarin. The authors would like to thank Pro-
fessors Alison Harvison Young and Patrick Healy for their invaluable guidance and support as
advisors throughout the course of the project. The authors would also like to thank Professors
Nicholas Bala, Nicholas Kasirer and William Foster as well as Justice Oscar D’Amours and Mary-
Anne Kirvan for reading drafts of the Note and for providing helpful criticisms and comments. The
present Note on the Young Offenders Act was financially supported by the Department of Justice
Canada. The views expressed herein are solely those of the authors and do not necessarily represent
the views of the Department. The Note was submitted for publication in the summer of 1993.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.J. 939
Mode de rdfdrence: (1993) 38 R.D. McGill 939
McGILL. LAW JOURNAL
[Vol. 38
Synopsis
Introduction
1.
The Juvenile Justice System: A Process of Reform
A. The Juvenile Delinquents Act
B. The Origins of Reform
C. The Process of Reform
1. The Justice Committee
2. Bill C-192
3.
The Renewed Process of Reform
I.
The Young Offenders Act: An Evaluation of Three Guiding Principles
A. Special Needs
1.
2.
Sentencing
Confessions
a. The Role of Parents
i.
The Right to Counsel
b. Parents, Persons in Authority and Duress
c. Waiver
d. Per Se Rules of Exclusion vs. Judicial Discretion
e. Conclusions
B. Protection of Society
1.
2.
Sentencing
Transfer
a. The Transfer Test
b. Bill C-12
c. The Transfer Hearing
C. Least Possible Interference with Freedom
1. Diversion
2.
Custody
Conclusion
*
*
1993]
Introduction
NOTE
The Young Offenders Act’ was passed into law on July 7, 1982, replacing
the Juvenile Delinquents Act, which had served for seventy-four years as the
primary piece of juvenile justice legislation in Canada. There is little disagree-
ment today that the changes introduced in the YOA were significant, constituting
perhaps what some authors have characterized as a “revolution”3 or “paradigm-
shift” in juvenile justice philosophy. However, the nature and success of this
revolution is still in doubt. On the one hand, many academics have interpreted
the YOA as a conservative retreat from the “rehabilitative ideal”‘ under the JDA
to a more punitive and legalistic approach.6 On the other hand, many in the
media have characterized the YOA as overly liberal and unable to provide suf-
ficient protection for the public from juvenile crime.7 Thus, eleven years after
the YOA was passed, there appears to be a consensus that reform is necessary
but great disagreement concerning the type of reform required.
Without question, part of the disagreement about the future of juvenile jus-
tice springsfrom fundamental philosophical differences within Canadian soci-
ety. The problem of young people in conflict with the law has always been con-
‘Young Offenders Act, R.S.C. 1985, c. Y-1, enacted as S.C. 1980-81-82-83, c. 110, proclaimed
in force 2 April 1984, SI 84-56, C. Gaz. 1984.11.1534 [hereinafter YOA].
20 July 1908, S.C. 1908, c. 40.
2Juvenile Delinquents Act, R.S.C. 1970, c. J-3 [hereinafter JDA]. The JDA was first assented to
3A.W. Leschied, P.G. Jaffe & W. Willis, eds., The Young Offenders Act: A Revolution in Cana-
dian Juvenile Justice (Toronto: University of Toronto Press, 1991).
Justice” (1982) 24 Can. J. Crim. 13.
4M.G. Aultman & K.N. Wright, “The Fairness Paradigm: An Evaluation of Change in Juvenile
5Under the parens patrice philosophy of the JDA, rehabilitation of children was the paramount
goal. This was seen to distinguish the juvenile system from its adult counterpart which had pun-
ishment as a paramount goal. See infra notes 26-32 and accompanying text.
6For example, T.C. Caputo has argued that, in the late 1970s, high unemployment and rising
crime rates produced a fertile environment for law and order campaigns in which calls for greater
protections from crime were paramount. Caputo notes that “the proponents of the justice model
have been able to exert a great deal of influence during this period of conservatism in Canada”
(T.C. Caputo, “The Young Offenders Act: Children’s Rights, Children’s Wrongs” (1987) 13 Can.
Pub. Pol. 125 at 138). Similarly, W. Wardell has observed in relation to the YOA that “[m]ore rights
are granted but considerably more responsibilities are also imposed. Without sufficient resources
the punishment aspect may be resorted to by courts by default of having few palatable alternatives”
(W. Wardell, “The Young Offenders Act” (1983) 47 Sask. L. Rev. 381 at 388). P. Havemann has
argued that the YOA constituted a shift in emphasis from “child saving” to “child blaming,” point-
ing to the “co-optation of the justice model to legitimate the law and order concerns of the Right
…” (P. Havemann, “From Child Saving to Child Blaming: The Political Economy of the Young
Offenders Act 1908-1984” in S. Brickey & E. Comack, eds., The Social Basis of Law: Critical
Readings in the Sociology of Law (Toronto: Garamond Press, 1986) 225 at 225, 234-35).
7Since the YOA was enacted into force, there have been numerous complaints that the juvenile
justice system is too lenient and that dangerous young offenders are profiting from the plethora of
“loopholes” available under the YOA. E.g., “Young Offenders Act Overindulges Our Young” Van-
couver Sun (25 May 1984) A5; “Youth Courts Too Soft, Provincial Report Says” Winnipeg Free
Press (16 January 1986) 20; “Youths Sentenced to ‘Pool, Cigarettes”‘ Halifax Chronicle Herald
(12 February 1988) 1; “Canadians Want Gangs Tried in Adult Court: Poll” Montreal Gazette (2
April 1989) A8; “Teenage Violence National Disease” Calgary Herald (4 April 1991) A3; “Silence
Cloaks Young Offenders: Expert Estimates Only a Few Youths Are Ever Charged” Calgary Herald
(31 March 1993) B1.
REVUE DE DROIT DE McGILL
[Vol. 38
troversial.’ However, it is our contention in this Note that much of the discontent
with the YOA stems from the fact that the Act contains fundamental ambiguities.
This ambiguity is manifested in two ways. First, the Act does not fully represent
one philosophical position or another. Rather, it is an uncomfortable compro-
mise between a variety of often contradictory philosophies. Second, the central
and guiding concepts used throughout the Act lend themselves to a multiplicity.
of possible interpretations.
The ambiguity of the Act’s guiding principles is reflected in particular in
the section 3 “Declaration of Principle” which is intended to guide judicial inter-
pretation of the Act.9 While paragraph 3(l)(a) states that “young persons should
not in all instances be held accountable in the same manner or suffer the same
consequences for their behaviour as adults,” it also states that “young persons
who commit offences should nonetheless bear responsibility for their contraven-
tions.” While paragraphs 3(l)(d) and (t) state that “the rights and freedoms of
young persons include a right to the least possible interference with freedom”
and that the court should consider “taking no measures or taking measures other
than judicial proceedings,” they also state that the court must balance this with
the “protection of society.” While paragraph 3(1)(c) states that young offenders
require “supervision, discipline and control,” it also states that they have “spe-
cial needs and require guidance and assistance.”
8See e.g. text accompanying infra notes 12-22.
9S. 3(1) reads as follows:
3.(1) It is hereby recognized and declared that
(a) while young persons should not in all instances be held accountable in the
same manner or suffer the same consequences for their behaviour as adults,
young persons who commit offences should nonetheless bear responsibility
for their contraventions;
(b) society must, although it has the responsibility to take reasonable measures
to prevent criminal conduct by young persons, be afforded the necessary pro-
tection from illegal behaviour,
(c) young persons who commit offences require supervision, discipline and con-
trol, but, because of their state of dependency and level of development and
maturity, they also have special needs and require guidance and assistance;
(d) where it is not inconsistent with the protection of society, taking no measures
or taking measures other than judicial proceedings under this Act should be
considered for dealing with young persons who have committed offences;
(e) young persons have rights and freedoms in their own right, including those
stated in the Canadian Charter of Rights and Freedoms or in the Canadian
Bill of Rights, and in particular a right to be heard in the course of, and to
participate in, the processes that lead to decisions that affect them, and young
persons should have special guarantees of their rights and freedoms;
(J) in the application of this Act, the rights and freedoms of young persons
include a right to the least possible interference with freedom that is consist-
ent with the protection of society, having regard to the needs of young per-
sons and the interests of their families;
(g) young persons have the right, in every instance where they have rights or
freedoms that may be affected by this Act, to be informed as to what those
rights and freedoms are; and
(h) parents have responsibility for the care and supervision of their children, and,
for that reason, young persons should be removed from parental supervision
either partly or entirely only when measures that provide for continuing
parental supervision are inappropriate.
19931
NOTE
Section 3 states that the courts should “liberally constru[e]” the YOA in
accordance with the Declaration of Principle. However, as each of the principles
in section 3 triggers a number of considerations, the courts are not provided with
clear guidance either as to the specific meaning of the applicable principles or
as to their relative priority. This has resulted in a distressing lack of consistency
and predictability in the law.
In this Note, we will seek to gain an understanding of the reasons for this
lack of consistency and predictability and to suggest a solution. In the first part,
we will examine the history of the process of reform to the JDA during the
1960s and 1970s which, we believe, helps to explain much of the ambiguity
inherent in the Act. We will argue that important and valid criticisms were made
during this period of the individualized, treatment-based approach to juvenile
justice found under the JDA. Such criticisms led to widespread calls during the
early 1970s for “decriminalization,” “deinstitutionalization” and “diversion.”
Unfortunately, many of these suggested reforms were forgotten or ignored dur-
ing the late 1970s as important philosophical and political compromises were
made during the YOA drafting process.
In the second part of the Note, we will argue that the compromises made
in the drafting of the YOA have produced substantial philosophical and linguis-
tic ambiguities in the Act itself. By analyzing the application of the principles
of “special needs,” “protection of society” and “least possible interference with
freedom” as basic interpretative guidelines in a variety of contexts under the
YOA, we will show how each has led to confusion and inconsistency in the
application of the Act. The ambiguous nature of these principles, we believe,
has necessitated the exercise of an unacceptable level of judicial discretion
under the YOA.
In this respect, a distinction must be made between two types of discretion.
Often, legislators intend to confer a measure of discretion to the courts to ensure
that the legislation is efficiently and flexibly applied. In such contexts, the judi-
cial exercise of discretion is both necessary and desirable. However, this must
be distinguished from the unintended conferral of discretion which arises when
legislative language is drafted without sufficient precision. In such cases, the
legislating is left by default to courts. And, in our opinion, this is exactly what
has occurred under the YOA. Individual judges, faced with the wide array of
goals or philosophical approaches contained in the Act, are often forced to apply
their own personal juvenile justice philosophies or preferences because of a lack
of guidance from the YOA.
Accordingly, we will suggest that the Declaration of Principle, and the
ambiguous concepts used therein, should be removed or de-emphasized under
the YOA. Rather than laying down broad and vague goals in a catch-all “Dec-
laration of Principle,” the legislators should be more concerned with establish-
ing specific goals in relation to specific issues addressed by the Act. By taking
a contextual look at sections relating, for example, to transfer, sentencing, or
confessions, and determining for each which principles should be given priority,
the Act would be more sensitive to the different considerations and different pri-
orities brought into play in relation to each of these sections.
McGILL LAW JOURNAL
[Vol. 38
In employing this contextual approach, we believe that the legislators
should look more carefully at the critiques made of the JDA by reformers during
the 1960s and 1970s. For, while the YOA was clearly intended to revolutionize
Canadian juvenile justice, many of the assumptions and principles which guided
the JDA continue to have an influence under the YOA. Indeed, as we will show,
issues relating to “rehabilitation,” “criminalization” and “institutionalization”
continue to play a significant and growing role in Canadian juvenile justice.
This, we believe, is as much a mistake today as it was under the JDA.
I. The Juvenile Justice System: A Process of Reform
A. The Juvenile Delinquents Act
When the YOA was given Royal Assent in 1982, it marked the culmination
of a twenty-year process of reform of its predecessor, the JDA. By the late
1970s, opposition to the JDA had become widespread and advocates across the
ideological spectrum were agreed that fundamental changes had to be made to
the juvenile justice system in Canada.” In order to put the YOA in context, it is
essential to understand why critics objected to the philosophy contained in the
JDA. For much of the content of the YOA is best understood not as part of a
comprehensive philosophy but as a response to specific criticisms made of the
JDA.
The JDA, introduced as law in 1908, has often been characterized as being
philosophically close to what Reid and Reitsma-Street call the “welfare” model
of juvenile justice.” The welfare model, as they describe it, places a high pri-
ority on the court’s role in assessing the child’s history, and on treatment or
rehabilitation in place of mere punishment. This, however, provides only an
incomplete description of both the JDA and the concerns that led to its introduc-
tion. In fact, the concerns motivating legislators in 1908 were two-fold: helping
to better the welfare of children and protecting society from juvenile crime and
moral degradation.
At the end of the nineteenth century, a movement of social reformers 2 and
church workers was growing in response to two perceived and interrelated prob-
lems: a disturbing expansion in juvenile crime and vagrancy 3 and the harsh and
lin the House of Commons Debates (15 April 1981) at 9307-28, (12 May 1981) at 9493-524,
(15 May 1981) at 9643-61, (29 May 1981) at 10072-92, all three parties approved of the major
changes introduced in the legislation. See infra notes 162-163.
IS. Reid & M. Reitsma-Street, “Assumptions and Implications of New Canadian Legislation for
Young Offenders” (1984) 7:1 Can. Crim. Forum 1 at 4.
“The Century of the Child” (1967) 45 Can. Bar Rev. 741 at 747.
12The “social work” profession emerged in the late nineteenth century. See generally G. Parker,
3As early as 1857, for example, a trustee of the Toronto Board of Schools stated that “[lhe idle-
ness and dissipation of a large number of children, who now loiter about the public streets or fre-
quent the haunts of vice, creating the most painful emotions in every well-regulated mind; and in
some degree involving the imputation, that the social condition of the body corporate of which they
form a part, cannot be of the highest order” (The Hon. John Elnsley, Toronto Board of Trustees,
Minutes, 6 December 1847, cited from S. Houston, “Victorian Origins of Juvenile Delinquency:
A Canadian Experience” (1972) 12 Hist. of Ed. Q. 254 at 256-57).
1993]
NOTE
inadequate treatment of children in reformatories and industrial schools. 4 On
the one hand, the reformers looked around and saw a disturbing number of des-
titute and aimless children causing trouble in the streets. On the other hand, they
saw that the social facilities set up to deal with this growing problem were woe-
fully inadequate. These concerns thus became linked in the minds of the reform-
ers. As one judge observed: “an ulcer is eating into the vitals of our social sys-
tem in the shape of crowds of people growing up in neglect and ignorance,
rapidly ripening into crime, too many of them destined to form the chief pop-
ulation hereafter of our gaols and Penitentiaries.”‘ 5
Seen in this way, the impulse to “save” children came hand-in-hand with
the impulse to protect society, because those children who were not properly
socialized could later grow up to be dangerous criminals. What the reformers
wanted was a more adequate social and legal system for “the protection and
reclaiming of destitute youths, exposed either by death or neglect of their par-
ents to evil influences and the acquisition of evil habits, which in too many
cases, lead to the commission of crime.” 6
While these concerns grew in the minds of social reformers, a possible
response was developing in the form of the positivist revolution in criminolog-
ical thought. Until the late 1880s, criminology had been dominated by the
so-called “classical” school, which was based on a conception of “man” as a
rational contractor whose liberty could be infringed by the state only to the
extent that his crime violated the “social contract.”17 The classical school
stressed the importance of clear and precise laws, adjudications based on guilt
with protections for the accused, and proportionality between the seriousness of
offences and the punishments imposed for these offences.”s
The positivists, however, rejected the classicist approach to crime because
they believed that the criminal was propelled by forces over which he or she had
no control. In contrast to the classicists, who constructed their approach to crime
on the assumption that human beings were “rational,” the positivists made it
14See generally J.S. Leon, “The Development Of Canadian Juvenile Justice: A Background For
Reform” (1977) 15 Osgoode Hall L.J. 71 at 84-86.
1-5 Toronto Globe (9 January 1857) 2.
16Preamble to An Act to Incorporate the Boys’ Industrial School of the Gore of Toronto, S. Prov.
C. 1862, c. 82.
17The definitive formulation of this view was Cesare Beccaria’s On Crimes and Punishments
(Indianapolis: Bobbs-Merrill, 1963), which was written in 1764. See also T. Hobbes, Leviathan,
C.B. Macpherson, ed. (London: Penguin, 1981) at 189-90. See generally I.R. Taylor, P. Walton &
J. Young, The New Criminology: For a Social Theory of Deviance (London: Routledge & Kegan
Paul, 1973) at 1-7.
1sThese followed logically from the assumption that the basis for punishment is the necessity
to restrain citizens from encroaching upon each other’s freedom as defined by the terms of the
social contract. The classicists stressed the need for predictable and consistent punishments, as this
would enable the rational potential criminal to weigh the possible penal consequences of his or her
criminal activity. Thus, for example, the classicists argued that the laws of society must apply
equally to all members of society since all are considered to be equal contractors. Moreover, judges
must ensure that the severity of punishment fits the severity of crime so as to ensure that the laws
are seen as rational and certain. See generally H. Mannheim, Pioneers in Criminology (Montclair:
Patterson Smith, 1973).
REVUE DE DROIT DE McGILL
[Vol. 38
their goal to apply the scientific method to a study of the causes of human
behaviour: “Positivism saw its role as the systematic elimination of the free will
‘metaphysics’ of the classical school –
and its replacement by a science of
society, taking on for itself the task of the eradication of crime.”‘”
In the late nineteenth century, this rise to prominence of positivism as a
criminological theory provided social reformers with a compelling solution to
their concerns about the welfare of the young and the protection of society. For
if, as the positivists claimed, crime and delinquency were to be understood as
a “disease,” a system which provided the proper treatment for deviants at a
young age would “cure” delinquents and, at the same time, serve to protect soci-
ety. Accordingly, it became popular to state that juvenile offenders should never,
as a report at the time cautioned, “be treated or spoken of as criminals, but
should be studied and dealt with in exactly the same way that a sick or defective
child is handled.”2 If the children were wayward, argued the reformers, it was
as a result of the evil influence of society or the neglect of parents.2′ In the opin-
ion of the reformers, then, there was little distinction between the neglected and
delinquent child as this distinction related only to whether the child was poten-
tially or actually criminal.’
Ultimately, positivist principles proved highly influential in the drafting of
the JDA. The combination of concerns about the welfare of children and the
need for treatment formed the cornerstone for the philosophy of the legislation.
In drafting the JDA, “the reformers undertook the delicate task of attempting to
design new procedures which promoted simultaneously the welfare and best
interests of children … and controlled the misbehaviour of children …” This
task was facilitated by the positivist-inspired belief that human beings were mal-
leable products of their environment who could be “treated” and “cured.”24 Sta-
ting that the juvenile delinquent should be treated “not as an offender, but as one
in a condition of delinquency and therefore requiring help and guidance and
proper supervision,”‘
the JDA conceptualized the court’s role as that of a sur-
rogate parent, intervening if other institutions such as the family or the schools
t9Taylor et al., supra note 17 at 10..
20Ontario, Legislative Assembly, “Fourteenth Annual Report of the Department of Neglected
and Dependent Children of Ontario” in Sessional Papers (1907) 39(7), No. 35 at 15. See N. Boyd,
“The Circularity of Punishment and Treatment: Some Notes on the Legal Response to Juvenile
Delinquency” (1980) 3 Can. J. Fam. L. 419 at 427.
25JDA, supra note 2, s. 3(2).
21
[Many were convinced] that a science of society existed and that the only way in which
social problems could be solved was by a socialization of the sectors of society which
produced or were the victims of most of the evils. … Closely related was the idea that
society had to be protected against the undesirable forces which could destroy it. Social
hygiene or social defence demanded that the respectable middle class values of society
be preserved by removing the cancer of poverty, misery and degradation of child life
in the slums and streets of Britain, the United States and Canada (Parker, supra note
12 at 747).
22Houston, supra note 13 at 263.
23Leon, supra note 14 at 72.
24N. Bala, “The Young Offenders Act: A New Era in Juvenile Justice?” in B. Landau, ed., Chil-
dren’s Rights in the Practice of Family Law (Toronto: Carswell, 1986) 238 at 239.
1993]
NOTE
failed to socialize the child properly. Modelling their approach on the parens
patrice jurisdiction of the English Chancery Court,26 the drafters of the Act
intended the juvenile court to adopt the role of a “wise and kind, though firm
and stem, father… [asking] not, ‘What has the child done?’ but ‘How can this
child be saved?”’27 As the JDA stated:
This Act shall be liberally construed in order that its purpose may be carried out,
namely, that the care and custody and discipline of a juvenile delinquent shall
approximate as nearly as may be that which should be given by his parents…2 8
In contrast to classicist limitations on the state’s intervention in the life of
the criminal, the JDA was based on the assumption that the intervention of the
state in the life of the child was a good thing. While the classicists sought to
limit the court’s role by imposing procedural limitations and proportionality of
sentencing, the JDA contained little in the way of procedural formality and pro-
portionality. The treatment-based philosophy underlying the legislation necessi-
tated a system based on both procedural and dispositional paternalism because
the emphasis in the JDA was on helping the juvenile delinquent as quickly as
possible. For this, an informal and highly discretionary system was necessary.
Thus, subsection 17(1) of the JDA stated:
Proceedings under this Act with respect to a child, including the trial and dispo-
sition of the case, may be as informal as the circumstances will permit, consistent
with a due regard for a proper administration of justice.
Children had no explicit right to counsel, appeals were only available by leave
of the court, and trials were held in camera.29 Dispositions under the JDA could
be of indeterminate length and judges had a wide discretion in regard to the
types of dispositions available.” No mention was made in the Act of the child’s
rights.
31
In the JDA, the twin concern for the protection of society and the effective
treatment of delinquent children were combined, .under the influence of positiv-
ist criminology, to produce legislation giving judges almost unlimited discretion
to convict deviant youths and place them into treatment programs. Delinquents
were treated as patients and the JDA made it clear that they were not to be con-
sidered responsible for their actions.
26Parens patrie stands for “father of the country” and the principle was established in Eyre v.
Shaftsbury (1772), 24 E.R. 659. In R. v. Gyngall (1893), 2 Q.B. 232 at 248, the court ruled that
“the jurisdiction … is essentially a parental jurisdiction and that description of it involves that the
main consideration to be acted.upon in its exercise is the benefit or welfare of the child.” See G.
Ct&Harper, “Age, Delinquent Responsibility and Moral Judgment” (1970) 11 C. de D. 489 at 490
note 5.
Jaffe & Willis, eds., supra note 3, 128 at 131-33.
cited in Leon, supra note 14 at 73.
27W.L. Scott, “The Juvenile Delinquents Act” (1908) 28 Can. L. Times and Rev. 892 at 892,
25JDA, supra note 2, s. 38.
29See JDA, supra note 2, ss. 37(2) and 12(1). No reference was made under the JDA to a right
30JDA, ibid., s. 20.
31See L. Beaulieu, “A Comparison of Judicial Roles Under the JDA and YOA” in Leschied,
to counsel.
McGILL LAW JOURNAL
[Vol. 38
B. The Origins of Reform
The parens patrice system of juvenile justice established under the JDA
reigned supreme and virtually undisturbed in Canada for fifty-four years. While
this may be explained in part-by the smooth functioning of the juvenile system,
a more compelling explanation is that the JDA operated in a critical vacuum.
The positivist school, born at the turn of the century, blossomed in the early
twentieth century. By the 1950s, the whole field of corrections was dominated
by behaviourists studying treatment and rehabilitation.”2 The early post-war
period, according to Young, was the one in which rehabilitation “received its
fullest and widest support”33 and this support was strongest in academic circles
where, in the 1950s and 1960s, criminology was being institutionalized at the
universities. Fostered in the universities and by social workers up until the late
1960s, parens patrice “remained unchallenged as the dominant correctional ide-
ology.”,
In 1962, however, the JDA was placed quite suddenly on the political
agenda when the federal government appointed a Committee of the Department
of Justice to study the problem of juvenile delinquency. The Committee released
what would prove to be a highly influential report in 1965.”5 This, in turn,
formed the starting point for the reform process to follow. In 1967, the Govern-
ment released a draft bill36 designed to replace the JDA and this was followed
in 1970 by Bill C-192.37 The Bill died after second reading and, as a result, a
Solicitor General’s Committee was set up to re-evaluate the reforms contained
32Professor J.A. Macdonald noted, in testimony at Senate hearings, that the “medical” or “psy-
chiatric” model of delinquency and treatment reached its peak in the 1940s and 1950s. According
to the “medical” approach, delinquents were seen to be “acting out emotional conflicts stemming
largely from personal and family pathologies.” To cure these pathologies, the intervention of highly
trained experts in psychological therapies was seen to be required to make the child understand the
source of his or her antisocial behaviour (Proceedings of the Standing Committee on Justice and
Legal Affairs, Issue No. 32 (21 September 1971) at 4-5).
33P. Young, “Sociology, the State and Penal Relations” in D. Garland & P. Young, eds., The
Power to Punish (London: Heinemann, 1983) at 98. See also M.W. McMahon, The Persistent
Prison? Rethinking Decarceration and Penal Reform (Toronto: Univerity of Toronto Press, 1992)
at 12.34F.T. Cullen & K. Gilbert, Reaffirming Rehabilitation (Cincinnati: Anderson, 1982) at 82. The
dominance of rehabilitation as a philosophy in the universities and among social workers was rein-
forced by a lack of hard data in the field of juvenile justice. As West notes, prior to the 1960s, very
little solid empirical information existed regarding the effectiveness of rehabilitation. The few
available research reports often consisted of anecdotes and judges’ reminiscences, and these
reports were based on the sparse empirical evidence found in police or judicial reports. According
to West, empirical criminological research was poorly funded in Canada until the founding of four
or five academic centres in the 1960s. As a result, there were no grounds upon which to challenge
the parens patriw system. See W.G. West, “Juvenile Delinquency and Juvenile Justice in Canada”
in J. Gladstone, R. Ericson & C. Shearing, eds., Criminology: A Reader’s Guide (Toronto: Univer-
sity of Toronto Centre of Criminology, 1991) at 262.
35Department of Justice, Report of the Department of Justice Committee on Juvenile Delin-
36Ministry of the Solicitor General, First Discussion Draft: An Act Respecting Children and
37Bill C-192, An Act Respecting Young Offenders and to Repeal the Juvenile Delinquents Act,
quency (Ottawa: Queen’s Printer, 1965) [hereinafter Report].
Young Persons (Ottawa: Queen’s Printer, 1967).
3d Sess., 28th ParI., 1970.
1993]
NOTE
in Bill C-192. The Solicitor General released his report in 19753 and this was
followed by draft legislative proposals in 1977 and 1979.39 In slightly altered
form, these proposals were introduced in 1981 as Bill C-6140 and passed in 1982
as the YOA. Ultimately, the process of reform to the JDA, which began in 1962,
took a full twenty years to complete.
It is clear, in looking back at the process of reform, that the “revolution”
in juvenile justice beginning in 1962 was initiated, carried through and funded
by the governments of the day. However, the revolution in the content of juve-
nile justice was in fact led by social scientists, psychologists and social workers.
While different governments in the 1960s, 1970s and 1980s were instrumental
in funding studies and drafting legislation, the major changes in juvenile justice
can be traced to recommendations made by academics in a variety of confer-
ences and consultations.
Why, after fifty years of critical silence, did ideas about juvenile justice
begin to change? Most likely, the broadening in thinking concerning juvenile
justice occurred as a result of a sudden and substantial growth in the 1960s in
socio-scientific information concerning the functioning of juvenile courts and
treatment centres. With the institutionalization of criminology as a science at
universities and the vast growth of academic work being done in the social sci-
ences, the number of studies relating to juvenile justice increased markedly.4′
The growth in the numbers of academics in the field naturally led to an increase
in, and diversification of, the ideas being proposed. Moreover, the range of peo-
ple writing on juvenile justice in the 1960s became more varied. They were not
“insiders” in the juvenile system such as judges, police and social workers but,
rather, outsiders with a more dispassionate and critical eye. These new research-
ers, according to West, “did not subscribe to traditional and conservative
assumptions about controlling the young.”42 They began to criticize both the
fundamental philosophical assumptions underlying the JDA and the specific
practical applications of that philosophy in the courts.
While the criticisms brought against the JDA in the 1960s and 1970s were
numerous and varied, there were four main developments which proved to be
the most influential in the policy process. The first of these was scientific in ori-
gin. Early calls for the decriminalization and deinstitutionalization of the juve-
nile system were inspired by the development of symbolic interactionism,
“labelling theory,” and developmental psychology as socio-scientific theories.
The second was the growth in the numbers of academics and professionals in
the 1960s and 1970s who advocated due process rights for children. This “chil-
38Ministry of the Solicitor General, Young Persons in Conflict with the Law (Ottawa: Commu-
nication Division, 1975) [hereinafter YPICL].
39Ministry of the Solicitor General, Highlights of the Proposed New Legislation for Young
Offenders (Ottawa: Ministry of Supply & Services, 1977) [hereinafter Highlights]; Ministry of the
Solicitor General, Legislative Proposals to Replace the Juvenile Delinquents Act (Ottawa: Solicitor
General, 1979).
40Bill C-61, Young Offenders Act, 1st sess., 32d Parl., 1981.
41See text accompanying notes 50-63 and notes 69-70.
42West, supra note 34 at 262.
REVUE DE DROIT DE McGILL
[Vol. 38
dren’s rights” movement coincided with, and gained strength from, the larger
North American movements for civil and human rights. The third was the grow-
ing empirical consensus in the early 1970s that rehabilitation, the cornerstone
of the parens patrice system, had not been effective in preventing recidivism.
The fourth was the development in the late 1960s and early 1970s of com-
munity-based alternatives to prosecution and incarceration known as “diver-
sion.”
By describing the criticisms made against the JDA in terms of four main
developments we do not suggest that there was unanimity of thought within
each of these developing “schools” or that there was no overlap between them.
However, as it is our intention to trace the policy process, it is fair in this context
to describe the criticisms in these terms. While such themes as decriminaliza-
tion, deinstitutionalization, due process and diversion are representative of.clus-
ters of ideas, they were nonetheless adopted as catchwords and used with influ-
ential effect by academics and politicians alike throughout the reform process.
These themes, taken together and understood as expressions of more complex
work being done in academia, formed the basis both for a devastating critique
of the JDA and for a new approach to juvenile justice.
C. The Process of Reform
1.
The Justice Committee
In 1962, a five-person committee of the Department of Justice was set up
to make recommendations concerning steps that could be taken by the “Parlia-
ment and Government of Canada” to address the problem of juvenile delin-
quency.43 This was the first major study of the JDA undertaken by the Canadian
government and it was extensive. The preparation of the Report took three years
and involved consultation with numerous academics, judges, lawyers, social
workers and community workers.
At the time, Canada was not alone in launching a full-scale evaluation of
its juvenile justice system. The government was perhaps influenced in its
appointment of a committee by the appointment of similar committees. in the
United Kingdom and the United States. 4 Interestingly, while these various for-
eign reports were uniformly critical of the juvenile systems in their respective
countries, the recommendations in the different reports varied radically. In
England and Scotland, the Ingleby and Kilbrandon Committees recommended
the abolition of the juvenile courts and the transfer of the juvenile court function
to a welfare agency.45 By contrast, in the United States, a national study, which
43Report, supr6 note 35.
44U.K., Report of the Committee on Children and Young Persons (Ingleby Committee) (London:
H,MS.O., 1960) [hereinafter Ingleby Report]; U.K., Children and Young Persons: Scotland (Kil-
brandon Committee) (Edinburgh: H.M.S.O., 1964) [hereinafter Kilbrandon Committee]; Presi-
dent’s Commission on Law Enforcement and Administration of Justice, Juvenile Delinquency and
Youth Crime (Washington: U.S.P.O., 1967) [hereinafter President’s Commission].
4 5See e.g. A.E. Bottoms,'”On the Decriminalization of English Juvenile Courts” in R. Hood, ed.,
Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radzinowicz (London: Hei-
nemann, 1974) 319.
19931
NOTE
referred to the administration of juvenile justice in many states as a “night-
mare,” recommended a tightening of procedural safeguards and a greater con-
cern for the protection of the public.’
The Canadian committee rejected the English move to a more welfare-
based approach to juvenile justice and adopted, to a large extent, a more legal-
istic, due process-based approach similar to that taken in the United States.47
While it may be tempting to conclude that the findings in the Report stemmed
from a desire to “get tough” on juvenile crime, a more accurate explanation is
that, by 1965, academics and professionals in the United States and Canada had
become extremely critical of the parens patrice approach to juvenile justice.
There is no question that reports of rising juvenile crime in the 1960s were
a source of concern both in the community and in government. When the Report
was commissioned in 1962, it is clear that Canadians were aware of what they
perceived as a sharp rise in the rates of juvenile delinquency. In a 1961 article,
for example, Stitt referred to an increase of 142% in the number of juvenile
offences and a 79% increase in the number of offenders from 1959-61 and
referred with concern to two headlines he had read recently in newspapers
(“Juvenile Delinquency Is On The Rise” and “More Juveniles Than Adults
Arrested Today”). 48 However, as we will show, a look at the literature of the
period reveals that academics and professionals in the field were far more con-
cerned about the negative effects of the JDA than they were about the negative
effects of juvenile crime. Thus, it is doubtful that this growing awareness about
a rise in crime was in itself the real impetus for reform. 49 To the contrary, the
real impetus for reform was a rising concern about the JDA itself.
46President’s Commission, supra note 44 at 31-40.
47This can be explained in part as a matter of constitutional reality. While the English unitary
state. allows the government to combine criminal and welfare functions in one system, the federal
division of powers makes this impossible in the Canadian context. Instead, the federal government
and the provinces must share jurisdiction over the Canadian juvenile justice system. Thus, while
the JDA, from its inception, was a piece of federal criminal legislation falling under s. 91(27) of
the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, the welfare aspects of the juvenile system
fell under provincial jurisdiction (ss. 92(13), (14), (16)). If, as in England and Scotland, the federal
government were to have abolished the juvenile courts, they would, paradoxically, have lost juris-
diction and control over juvenile justice. This explains why the drafters of the JDA felt it necessary
to extend the scope of the criminal law by making violations of municipal by-laws and such status
offences as “sexual immorality” criminal offences. See R. Fox, “Young Persons in Conflict with
the Law in Canada” (1977) 26 I.C.L.Q. 445 at 450-5 1. The offence of “delinquency” created under
the JDA was upheld on constitutional grounds in B.C. (A.G.) v. Smith, [1967] S.C.R. 702, 65
D.L.R. (2d) 82.
48J.M. Stitt, “Correction Facilities for the Juvenile Offender – A Comparison of Ontario and
491ndeed, the feeling among citizens that juvenile crime was “on the rise” was not unique either
to Canadians or to Canadians in the 1960s. Concern with the growing numbers of unruly youth
has been.a part of society for as long as societies have existed. Indeed, one of the motivating factors
in the drafting of the JDA was precisely a feeling that juvenile crime was on the rise and that a
solution was required. For example, Dr. Charles Duncombe expressed a concern in 1836 about the
number of Toronto children with a “ragged and uncleanly appearance” who were using “vile lan-
guage” and displaying “idle and miserable habits” (cited in L. Johnson, History of the County of
Ontario, 1615-1875 (Whitby, Ont.: Corp. of the County of Whitby, 1973) at 158). See Leon, supra
note 14 at 76.
the U.K.” (1962) 2 Osgoode Hall L.J. 356.
McGILL LAW JOURNAL
[Vol. 38
Perhaps the most influential of the critiques brought against the JDA in the
1960s stemmed from the development of “symbolic interactionism” as a socio-
scientific theory.” According to this theory, cognitive development occurs as an
“interplay between the active internal forces and the environment in which the
individual lives.”‘” Symbolic interactionists view both human nature and the
social order as malleable and subject to change. This change is manifested in
two different ways. On the one hand, they argue, individuals are constantly
being modified by taking on the expectations and points of View of the people
with whom they interact in intimate small groups. On the other hand, these indi-
viduals also contribute to the process of change by helping to shape the groups
of which they form a part.
According to symbolic interactionists, then, concepts of self are not biolog-
ically determined but, rather, change and develop by way of an individual’s rela-
tions with parents and society. These concepts are initially based on interactions
with family, but as the child begins to interact with new people and groups, the
concepts change.52 The child’s moral development thus takes the form of an
evolutionary interaction with social institutions, authority figures and other chil-
dren. In this sense, the assumptions of symbolic interactionists intersected in
broad terms with the positivist assumptions held by many of the reformers in the
late 1800s. Both saw human nature as malleable and both saw the moral and
cognitive development of youth as being tied to the kind of environment in
which a child develops. However, the symbolic interactionists drew a radically
different conclusion about possible solutions to the problem of delinquency than
the positivists.
As we have seen, the drafters of the JDA felt that juvenile delinquents
should be treated as a doctor might treat someone who was ill and in need of
treatment. This flowed naturally from their assumption that the malleability of
juvenile personalities left them open to the reforming influences of a rehabili-
tation-based juvenile justice system. Just as poor parenting and evil societal
influences had “caused” the child’s delinquent personality, the positivists
believed that experts could “uncause” the evil influences by giving delinquents
proper care. Symbolic interactionists, however, turned this conclusion on its
head. In contrast to the positivists, symbolic interactionists began to argue that
the malleability of juvenile personalities might make them particularly vulner-
able to psychological harm under a paternalistic juvenile justice system. In fact,
they argued, such a system could have the perverse effect of reinforcing devi-
ance in the very children it was designed to “cure.”
50lnteractionism was first conceived by Charles H. Cooley in 1902 (C.H. Cooley, Human Nature
and the Social Order (New York: Schocken Books, 1964)) and the symbolic element was devel-
oped by George Mead in 1934 (G.H. Mead, Mind, Self and Society (Chicago: University of Chi-
cago, 1934)). It was first applied to delinquency by Edwin H..Sutherland in 1939 (E.H. Sutherland,
Principles of Criminology (Chicago: Lippincott, 1939)). For a general description see L.T. Empey,
American Delinquency: Its Meaning and Construction (Illinois: Dorsey Press, 1978) c. 13.
51J.T. Dalby, “Criminal Liability in Children” (1985) 27 Can. J. Crim. 137 at 139-40.
52See B. Dickens, “Legal Representation and Due Process in Delinquency Proceedings” (1978)
9 R.D.U.S. 201 at 214-16.
1993]
NOTE
On the basis of these assumptions, the symbolic interactionists made two
related but different arguments about juvenile delinquency. A first argument
was made by Sutherland53 and developed by Cressey.T
If it is true, they argued,
that delinquent behaviour is the result of deviant motives, values and rational-
izations acquired in intimate groups, then the practice of keeping delinquents
separate from non-delinquents in detention centres and correctional institutions
may do more to encourage than discourage delinquent behaviour. When delin-
quent juveniles are isolated from law-abiding juveniles and locked up only with
each other, the strength of delinquent norms, rationalizations and identities can
only increase:5″ the training schools become a sort of “crime school” for juve-
niles.
A second argument was made by a sub-school of symbolic interactionism
called “labelling theory.”56 Noting the relation between the development of con-
ceptions of the self and societal interaction, theorists such as Tannenbaum
pointed to the enormous symbolic importance of a youth’s entry into the juve-
nile justice system. These theorists believed that many otherwise “normal” chil-
dren were in fact rendered deviant by the interactive process which followed a
charge and conviction of delinquency. By “labelling” certain, often minor, acts
as “delinquent,” the juvenile justice system produced two related effects. First,
the attitude of the community toward the youth charged would harden: “the
individual who used to do bad and mischievous things [would] now become a
bad and unredeemable human being.”57 Second, the community’s view of the
child would have a serious impact on the child’s own self-image: “The young
delinquent becomes bad because he is defined as bad and because he is not
believed if he is good. 58
This “dramatization of evil,” Tannenbaum argued, sets up a self-fulfilling
prophecy in which the juvenile justice system serves to foster the very behav-
iour it was designed to prevent.5
1 Society’s wide definition of “juvenile delin-
53E.H. Sutherland & D.R. Cressey, Criminology, 10th ed. (Philadelphia: Lippincott, 1978) at
54D.R. Cressey, “Changing Criminals: The Application of the Theory of Differential Associa-
80-83.
tion” (1955) 61 Am. J. Soc. 116.
55Empey, supra note 50 at 321.
56Some of the labelling theorists include H.S. Becker, Outsiders: Studies in the Sociology of
Deviance (New York: Free Press of Glencoe, 1963); J.I. Kituse, “Societal Reaction to Deviant
Behaviour: Problems in Theory and Method” in H.S. Becker, ed., The Other Side: Perspectives on
Deviance (New York: Free Press of Glencoe, 1964) 87; E.M. Lemert, Social Pathology: A System-
atic Approach to the Theory of Sociopathic Behavior (New York: McGraw-Hill, 1951). Its influ-
ence on Canadian juvenile delinquency studies could be detected as early as 1961. See W.T.
McGrath, “Some Suggested Amendments to Canada’s Juvenile Delinquents Act” (1962) 4 Crim.
L.Q. 259 at 263, where the author expressed concern that under the JDA, a “relatively inconse-
quential action can bring a child before the court and cause him to be branded a juvenile delinquent
with all the subsequent danger that he will live up to the new role assigned him.”
-57F. Tannenbaum, Crime and the Community (New York: Ginn & Company, 1938) at 17.
5Slbid. at 17-18.
59As Tannenbaum puts it
The process of making the criminal … is a process of tagging, defining, identifying,
segregating, describing, emphasizing, making conscious and self-conscious; it becomes
a way of stimulating, suggesting, emphasizing, and evoking the very traits that are
REVUE DE DROIT DE McGILL
[Vol. 38
quency” has the effect of “stigmatizing” non-conforming young persons who,
under a different societal definition of “delinquency,” might otherwise be con-
sidered normal.6′ The stigma of “juvenile delinquency” serves only to empha-
size the difference between the child and other “normal” children: “this tagging
by society and the ensuing self-branding by the juvenile –
is the circle that iso-
lates, tightens and hardens the subculture and ultimately signs it with the Mark
of Cain of crime, delinquency or social deviation.”61
Thus, for the labelling theorists, delinquency appears not merely as a path-
ological or clinical “condition” but as a societal definition of deviant behav-
iour.62 Seen in this way, the positivist pretense to scientific status becomes sus-
pect. Are these experts really “curing” juvenile delinquents of a condition or are
they using the coercive power of the criminal law to socialize children accord-
ing to their own values?63
Symbolic interactionism and labelling theory translated quite easily into
the specific criticisms of the JDA which were found in the Report and else-
where.64 In particular, the Committee in the Report placed emphasis on the prob-
lem of “stigma.” As the Committee noted:
The method of criminal law, at least when employed in relation to any sensitive
area of activity, involves an implied characterization of conduct as anti-social. The
effect of this is to stigmatize the person of whom the criminal process is invoked
and to subject him to the disabilities that are alien to, or subversive of, any pro-
tective purpose that might in fact be the subject of the proceeding.65
complained of … [T]he person becomes the thing he is described as being (ibid. at
19-20).
6For a good summary of work done in relation to labelling and stigma, see P. Walker, “The Law
and the Young: Some Necessary Extra-Legal Considerations” (1971) 29 U.T. Fac. L. Rev. 54 at
60-67.
61S. Shoham & G. Rahav, “Social Stigma and Prostitution” [1967] Ann. Intemat. Crim. 479 at
492. See also S. Shoham, The Mark of Cain: The Stigma Theory of Crime and Social Deviation
(Dobbs Ferry, N.Y.: Oceana, 1970).
62As W.R. Delagran put it, “people [do] not become delinquent or criminal merely by their acts,
but by the way society [treats] those acts” (W.R. Delagran, “Juvenile Delinquency” (1965) 7 Can.
J. Corr. 117). Delagran noted that the assumption current in the research of the time was that delin-
quency has a local character and that a correlation exists between the values and norms of the peo-
ple in a community and the nature of delinquent behaviour (ibid. at 118). In this regard, Delagran
was influenced by A.K. Cohen’s thesis concerning delinquency among poor children. Cohen
hypothesized that delinquency is caused in large part by the lower class boy having to live up to
middle class values and standards without the benefit of the educational skills necessary for
rewards under that system. Rather than admit failure, he develops his own system with like-minded
peers. In this setting, he can achieve recognition for the anti-social things he has learned and make
middle class values the target of his anger. See A.K. Cohen, Delinquent Boys (New York: Glencoe
Press, 1955).
63As K.T. Erikson puts it: “Each time the group censures some act of deviation, … it sharpens
the authority of the violated norm and declares again where the boundaries of the group are located
… Thus deviance cannot be dismissed simply as behaviour which disrupts stability in society, but
may itself be, in controlled quantities, an important condition for preserving stability” (K.T. Erik-
son, “Notes on the Sociology of Deviance” in Becker, ed., supra note 56 at 14-15).
35 at 36-40.
64Indeed, the influence of labelling theory was recognized explicitly in the Report, supra note
65Report, ibid. at 51.
19931
NOTE
The logical response to the stigmatizing effect of the juvenile system was,
of course, to reduce the scope of the juvenile justice system. In particular, critics
of the JDA objected to the fact that the definition of “juvenile delinquency”
under the JDA encompassed breaches of provincial and municipal laws and
such offences as “sexual immorality.”66 As early as 1963, the Canadian Correc-
tions Association argued in a brief to the Justice Committee that the broad scope
of juvenile delinquency legislation made the problem of juvenile delinquency a
self-fulfilling process.’ The Association noted that the wide wording of “delin-
quency” did not allow for a distinction between offences in violation of the
Criminal Code and violations of municipal by-laws. Each child found “delin-
quent” was liable to the same range of dispositions, although the particular acts
for which they were responsible may have differed greatly in seriousness. By
grouping together youths who had committed serious crimes and those who had
committed minor delinquent acts, the legislation cast a very wide and indiscrim-
inate label over all forms of deviant youth behaviour. The Association sug-
gested, and the Committee agreed,” that the generic term of “juvenile delin-
quency” had to be replaced with specific criminal offences in order to reduce
the JDA’s damaging stigmatizing effect.
While work being carried on in symbolic interactionism led to calls for the
narrowing of the definition of juvenile delinquency, parallel work in the field of
developmental psychology led to calls for redefinition of the age groups over
which the juvenile courts had jurisdiction. Of particular interest to juvenile jus-
tice theorists during the 1960s was the work by psychologists such as Piaget and
Kohlberg pointing to a moral and cognitive differentiation between stages of
youth development.69 The key to the work of these psychologists was the belief
that moral development is a progression “towards basing moral judgments on
concepts of justice.”7 They observed that as the sense of justice grows in the
66Section 2(1) of the JDA, supra note 2, defined a “juvenile delinquent” as any child who vio-
lated any provision of the Criminal Code or any provincial statute, municipal by-law or was guilty
of any “sexual immorality or any similar form of vice” or who was uncontrollable, incorrigible or
unmanageable.
67Canadian Corrections Association, The Child Offender and the Law (Ottawa: Canadian Wel-
fare Council, 1963) at 5-7.
68Report, supra note 35 at 40, 68.
69j. Piaget, The Moral Judgment of the Child (New York: Free Press, 1965); L. Kohlberg, “Moral
Development” in International Encyclopedia of Social Sciences, vol. 10 (New York: MacMillan,
1968) 483 at 490.
70Kohlberg, ibid. at 489. According to Kohlberg, there is, among children, a “culturally universal
age development of a sense of justice, involving progressive concern for the needs and feelings
of others and elaborated conceptions of reciprocity and equality. As this sense of justice develops,
however, it reinforces respect for authority and for the rules of adult society …” (ibid.).
Piaget, for example, described 3 broad stages of development in relation to distributive justice.
During the first stage, and lasting in the average child up to the age of 7 or 8, the child’s sense
of justice is based entirely on the authority of law: “just” is what is commanded by the adult. Dur-
ing the second stage, from the ages of 8 to 11, the child begins to develop a sense of individual
responsibility and autonomy, and begins to see his or her acts as distinct from family or social
norms. In the third stage the child develops a sense of “equity” which consists in determining what
are the attenuating circumstances in moral situations based on an account of the way in which each
individual is situated. See Piaget, ibid. at 284-85.
McGILL LAW JOURNAL
-[Vol. 38
child, so does the respect for authority and for the rules of adult society. While
theorists disagreed about the specific borderline ages at which children devel-
oped a “sense of justice,” they all concurred in the conclusion that general cat-
egories of development could be described.
The work done by Piaget and Kohiberg, among others, had an effect both
on Canadian psychologists7 ‘ and on Canadian juvenile justice policy.72 In partic-
ular the work of developmental psychologists had a direct significance in rela-
tion to both the minimum and maximum ages for juvenile court jurisdiction. In
relation to the minimum age, this work forced policy makers to reconsider
grouping seven and eight-year-olds in the same category as fifteen-year-olds.
For how can a child justifiably be charged with a criminal offence if that child
does not even understand basic adult concepts of justice? Children of seven
years simply do not have sufficiently developed cognitive and moral skills to be
subjected to criminal charges. Moreover, this is compounded by the danger that
younger children are particularly susceptible to stigma. In this sense, calls for
raising the minimum age coincided with calls for narrowing the range of
offences, as both pointed to the need for decriminalization and deinstitutional-
ization. Following this reasoning, the Committee recommended a raising of the
minimum age to ten years old.73
The work of psychologists was less effective in helping to set a specific
maximum age. However, it did force policy makers to consider the fact that
more subtle distinctions had to be made between different stages of develop-
ment.74 The argument for increasing the maximum age was based on the idea
that adolescents between fourteen and eighteen form a distinct phase in moral
and cognitive development and that the protections of the juvenile system
should be extended to shield a wider group of these adolescents from the adult
system.7″ Following this reasoning, the Committee suggested that a maximum
Kohlberg built on Piaget’s work by defining 6 different stages of moral development, although
he disagreed with Piaget in relation to the age span of each stage and the degree of overlap between
the stages. See Kohlberg, ibid. at 489.
quant” (1964) 6 Can, J. Corr. 58; CWtl-Harper, supra note 26.
71See e.g. F. Belpaire, “Rdactions de transfert et perception de la soci6t6 chez le jeune d61in-
72The steps taken by the Committee to raise the minimum and maximum ages -were part of an
increasingly popular international trend. The Ingleby Report, supra note 44 at 1191, recommended
a raise of the minimum age from 10 to 12. The Pr6vost Commission recommended raising the min-
imum age to 15 (see Quebec, Commission d’enquete sur l’administration de la justice en mati~re
criminelle et p6nale au Quebec, La socigtiface au crime, vol. 1, t. 1 (Quebec City: Government
of Quebec, 1970) (Commissaire: Y. Prvost) at 106-09 [hereinafter Pr6vost Commission]). The
Report, supra note 35 at 284, recommended that the minimum age be raised to 10 with an option
for the provinces to raise it to 12. In other countries, as well, the lower limit was higher than in
Canada. In England it was 10, in France and Poland 13, in Germany, Austria, Czechoslovakia, and
Norway 14 and in Denmark and Sweden 15. See C6t-Harper, ibid. at 494.
“Report, ibid. at 284.
74Although the ultimate decision on the issue of maximum age was made on political and eco-
nomic grounds and not on the basis of psychological research. See text accompanying notes
113-15.
75Furthermore, the recognition of disparities in maximum ages between provinces served to
highlight the argument that labelling theorists were making about the social nature of “delin-
quency.” For, surely, as MacLeod pointed out at the time, it is absurd to have one province declar-
19931
NOTE
age of 17 be uniformly applied across all provinces.76
These socio-scientific developments were not the only factors impacting
upon the reform process. Beginning in the early 1960s and continuing on into
the 1970s, a movement among lawyers and social workers to give juveniles the
same due process rights as adults was growing in strength. This movement,
which had as its goal increased protection for juveniles in the courts, intersected
in many ways with developments in psychology. Both pointed to the need to
reduce the power, discretion and scope of the juvenile court.
Given the social and political climate of the 1960s77 it was not surprising
that a growing number of academics and interest groups began to call for rights-
based reforms in juvenile justice.” Prior to 1960, the legal profession had, in
many respects, forgotten about juvenile justice. The dominant parens patrime
philosophy brought with it the idea that juvenile justice was best left to the
“experts” and that lawyers would only interfere with and delay the rehabilitation
process. As Ketchum notes in reference to the United States:
The model for the juvenile justice system was the social science or medical model
–
something with which the legal profession was not familiar. So, almost as
quickly and effortlessly as it was found to be constitutional, the juvenile court was
forgotten by lawyers and judges. Most juvenile courts in the 1930s and 1940s
became the province of social workers and often were listed in the telephone
directory in columns reserved for social agencies. 79
It was not until the 1950s that a series of articles in American law journals
began to raise questions about the lack of procedural rights for juveniles in the
name of benevolent care, the informality of judicial proceedings and the virtual
abandonment of the court by the law profession in favour of social workers.”0
ing a given 17-year-old to be “delinquent” while an equivalent 17-year-old in an adjacent province
is considered to be merely “neglected.” A.J. MacLeod, “The Juvenile Delinquency Committee”
(1964) 6 Can. J. Corr. 43 at 48.
76Report, supra note 35 at 284.
77The rise of rights discourse in juvenile justice circles during the 1960s came at the same time
as the rise of rights discourse in many other social movements. Since the end of World War II and
the establishment of the United Nations, the use of rights language in academic, legal and political
discourse as a whole had expanded rapidly. However, it was in the 1960s that this discourse blos-
somed as an integral part of the dramatic social movements of the decade. The symbolic impor-
tance of rights language as a means for progressive change was greatly strengthened by its appli-
cation in the civil rights movement, the women’s movement and various other reformist
movements. Indeed, the growth in rights discourse was such that, in 1968, Maxwell Cohen
observed that international and domestic beliefs had “altered totally beyond anything that could
have been imagined two decades before.” See M. Cohen, “Human Rights: Programme or Catchall?
A Canadian Rationale” (1968) 46 Can. Bar Rev. 554. He argued that “[h]uman rights became …
within the past twenty years, an important piece of ‘debating’ language … part of the political dia-
logue, part of the debating experience, of peoples in all parts of the world, even those in affluent
societies” (ibid. at 557).
78See e.g. Report, supra note 35 at 138-55.
790.W. Ketchum, “The Development of Juvenile Justice in the United States” in V.L. Stewart,
ed., The Changing Faces of Juvenile Justice (New York- New York University Press, 1978) at 14.
SSee e.g. M.J. Beemsterboer, “The Juvenile Court-Benevolence in the Star Chamber” (1960)
50 J. Crim. L., Crim. & Pol. Sci. 464; P.W. Tappan, “Treatment without Trial” in S. Glueck, ed.,
The Problem ofDelinquency (Boston: Houghton Mifflin, 1959) 290. See generally A. Binder, “The
Juvenile Justice System” (1979) 22 Am. Behav- Sci. 621.
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However, the real explosion in juvenile rights discourse did not occur until two
critical United States Supreme Court decisions, Kent v. U.S.81 and In Re Gault12
In Kent, the trial judge failed to hold a hearing and did not confer with the
child, his parents or his lawyer before transferring him to adult court. In making
his ruling, the trial judge made no findings and gave no reasons. On appeal to
the Supreme Court, Fortas J. overturned the trial court decision on the grounds
that the judge had not accorded the child due process. Although Fortas J. did not
grant the juvenile all the due process rights that would be accorded an adult, he
decided that the juvenile was entitled to a hearing and access by his counsel to
his social service record, probation report, and other material on which the
judge relied.
A year later, in Gault, the Court extended the principles discussed in Kent.
In this case, a boy had been arrested for making obscene phone calls. A hearing
was held in the judge’s chambers without the boy’s parents, who had not been
contacted. There were no witnesses and there was no direct transcript or record
of the hearing. The Supreme Court decided that the boy had been denied his
rights to counsel, notice, confrontation, cross-examination and denied the priv-
ilege against self-incrimination. 3 These decisions were in turn followed by a
flood of articles in the United States which brought the question of juvenile
rights to ‘the forefront.
In Canada, a parallel movement for the introduction of due process rights
in the juvenile courts was growing in the 1960s,’ but this movement was not
spearheaded by the courts. In contrast to the activism of the American Supreme
Court, there were no Supreme Court decisions in Canada clarifying the rights
of juvenile delinquents. Furthermore, due process principles were inconsistently
applied by the lower courts. For example, while some courts decided that
accused juveniles had a right to be heard and make a full defence, 5 a right to
cross-examine and bring witnesses,86 and a right to proof beyond a reasonable
doubt,87 in other cases the courts came to the opposite conclusion.88 In contrast
1383 U.S. 541 (1966) [hereinafter Kent].
82387 U.S. 1 (1967) (hereinafter Gault].
83Following up on Kent, supra note 81, and Gault, ibid., in In Re Winship, 397 U.S. 358 (1970),
the Supreme Court decided that the need for proof beyond a reasonable doubt was requiredin juve-
nile as well as adult cases.
84For example, the Canadian Corrections Association came out in favour of due process guar-
antees, including a right to legal aid. See “Official Statement of Policy of the Canadian Corrections
Association” (1968) 10 Can. J. Corr. 480 at 482. The due process movement became even stronger
in the 1970s. See e.g. D.M. Steinberg, “Children’s Righfs” (1974) 22 Chitty’s L.J. 238; H. Dumont,
“Lejeune contrevenant” (1978) 9 R.D.U.S. 115; K. Catton, “Models of Procedure and the Juvenile
Courts” (1975-76) 18 Crim. L.Q. 181; M. Rivet & B. Marceau, “Le tribunal pour jeunes d6lin-
quants: sa juridiction et sa proc&lure” (1975) 53 Can. Bar Rev. 302.
85R. v. B. (1956), 19 W.W.R. 651, 116 C.C.C. 382 (B.C.S.C.); R. v. H. & H. (1946), [1947] 1
W,.R. 49, 88 C.C.C. 8 (B.C.S.C.).
86R. v. Tillitson, [1947] 2 W.W.R. 232, 89 C.CC. 389 (B.C.S.C.); R. v. Pepin (1974), 20 C.C.C.
(2d) 531 (Que. Sup. CL).
87R. v. Moore (1975), 22 C.C.C. (2d) 189 (B.C.S.C.); R. v. Mitchell (1975), 16 N.S.R. (2d) 206
(S.C.T.D.).
881n R. v. GeraldX (1958), 24 WAV.R. 310 (Man. Q.B.), aff’d (1958), 25 W.W.R. 97 (Man. C.A.)
19931
NOTE
with the United States, the Canadian due process movement was headed by aca-
demics, interest groups and policy makers who were influenced by the Amer-
ican jurisprudence and the vast American literature on the topic. 9 These due
process advocates sought to implement reforms through legislative change
rather than through the courts.
The main argument made by due process activists was that a child’s young
age should not in itself justify a reduction in protections against the criminal
power of the state. In fact, they argued that the child’s particular vulnerability
should justify according more protections because children are less able to
defend themselves than adults. Under the JDA, however, virtually no due proc-
ess guarantees were given to juveniles accused of delinquency. For example, the
juvenile had a right to representation by a probation officer but not by a lawyer.
Moreover, the probation officer’s primary responsibility was to the court and
not to the child. In contrast to the adversarial relationship between a defence
lawyer and the court, the judge and probation officer had a cooperative relation-
ship.9″ When this fact was combined with a heavy probation officer workload,
[hereinafter Gerald X], for example, the court held, despite a strong dissent, that a juvenile’s con-
fession of having committed the offence following a judge’s question of “What did you do?” was
a plea of guilty. In many other decisions, courts decided that the absence of counsel did not affect
the validity of proceedings. See e.g. Re P, [1973] 2 O.R. 818, 12 C.C.C. (2d) 62 (H.C.); R. v C.M.
(1975), 14 N.B.R. (2d) 43, 2 C.R. (3d) S-29 (Sup. CL). One judge has said:
I would, however, like to qualify the statement that the presence of lawyers in juvenile
courts will provide better justice by adding the rider that these lawyers should be law-
yers who understand what the juvenile court is trying to do, who are in harmony with
its basic philosophy, who take a socio-legal, and not a strict legal, approach to the chil-
dren. When a lawyer comes into a juvenile court, throws his briefcase on the counsel
table and announces to the court: “I represent this accused. He is pleading not guilty,”
the presiding judge knows at once that the lawyer thinks that he is in criminal court
for children, that he does not know what it is all about, that he has never understood,
if indeed, he has read Section 3 of the Juvenile Delinquents Act … (R. St. George
Stubbs, “The Role of the Lawyer in Juvenile Court” (1974) 6 Man. L.J. 65 at 70).
The uncertainty of the due process guarantees in the Canadian juvenile courts led many judges
to transfer serious cases to adult court as a protection for juveniles. For instance, in R. v. P.M.W.
(1955), 16 W.W.R. 650 (B.C. Juv. Ct.), a B.C. juvenile court stated that the procedures of the court
for children were very flexible and that the court was not meant for punishment. The court doubted
its ability to give a fair trial, reduced the charge to manslaughter and waived jurisdiction to adult
court. See also Re Cline (1964), 45 W.W.R. 184 at 189, 2 C.C.C. 38 (B.C.S.C.), where the court
stated that a juvenile court could not appreciate the “fine points of the defences available to persons
accused of manslaughter” and transferred the youth to adult court in order to give him a fair trial;
Re L.Y. (no. 1), [1944] 2 W.W.R. 36, 3 D.L.R. 796 (Man. C.A.). Such cases, Jane Morley argues,
amounted to a vote of judicial non-confidence in the juvenile system. See J. Morley, “Transfer of
Children to the Ordinary Criminal Courts: A Case of Legislative Limbo” (1979) 5 Queen’s L.J.
288 at 300.
89The influence was sufficiently strong that it prompted T. Grygier to comment in 1968 that “it
is distressing to see that Canada, which is in the best position in the world to take advantage of
both Common Law and Civil Law practice is as much guided by American law and jurisprudence
as if no other system of law existed” (T. Grygier, “Juvenile Delinquents or Child Offenders: Som6
Comments on the First Discussion Draft of an Act Respecting Children and Young Persons” (1968)
10 Can. J. Corr. 458 at 460).
90A good example of the irritation that counsel could cause under a parens patrice system can
be seen in the transcript of the Gerald X case, supra note 88 at 107-08 (C.A.). When the child’s
father hired counsel to contest his son’s earlier informal “plea,” the judge confronted the counsel
McGILL LAW JOURNAL
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it made adequate representation a rare commodity. 9″ This lack of representation
violated the most basic of due process guarantees because representation by a
lawyer is necessary for the enforcement of all other rights. In Fortas J.’s words,
“the right to representation by counsel is not a formality. It is not a grudging
gesture to ritualistic requirement. It is of the essence of justice.”92 As one author
argued:
the “hearing” is essentially a trial … and, in virtually all cases, the “treatment” is
punishment inasmuch as it is a restriction on liberty. Couching the proceeding in
nice terms does not alter the fact. This is a process with all the degrading elements
… With this in mind, the lawyer must not submit blindly to the will of the pros-
ecution or court. Rather, within the bounds of sound reasoning he must function
as an adversary in order to insure that the very basic elements of justice and fair
play are introduced.93
The lack of a right to counsel was not the only omission of due process
rights in the JDA. Indeed, subsection 5(2) and section 17 of the JDA stated
explicitly that informality of procedures was the rule. Subsection 5(1) provided
that trials under the JDA would be summary in nature. However, subsection 5(1)
was limited by section 17, which stated that proceedings under the Act, includ-
ing the trial and disposition of the case, could be “as informal as the circumstan-
ces will permit, consistent with a due regard for a proper administration of jus-
tice.” Moreover, subsection 5(2) continued, “no adjudication or other action of
a juvenile court with respect to a child shall be quashed or set aside because of
any informality or irregularity where it appeared that the disposition of the case
was in the best interests of the child.”
The procedural protections accorded to the child were thus left almost
entirely to the discretion of the judge. While some judges decided that juveniles
should be accorded the same rights as adults,94 others did not.95 As a result, it
was not unusual in 1969 for a Canadian court to decide:
In my view, the appellant had a fair trial which was consistent with the proper
administration of justice. That the proceedings were conducted with an informa-
lity which would perhaps be unacceptable in a formal court of law is true. How-
ever, such informality is covered by s. 17 of the JDA. The record shows that the
judge’s greatest concern was to protect the rights of the appellant and the other
accused and not to treat them as criminals but as misdirected and misguided chil-
dren.
96
in his first appearance by stating: “you haven’t as yet asked permission to represent this boy” and
then continued by telling the lawyer that he was “gumming the works up,” finishing by threatening
to transfer the case to adult court if the counsel did not retire.
Court” (1960) 12 St. Louis U. L.J. 631 at 637.
9tSee e.g. Report, supra note 35 at 142-45.
92Kent, supra note 81 at 561.
93Comment, “The Role of the Lawyer in Preparation For a Delinquency Hearing in Juvenile
94For example in Re Miller (1962), 37 W.W.R. 571 at 573 (Sask. Q.B.), the court stated that “it
is essential for the due administration of justice that an accused be tried according to law, and that
lie should have a fair trial and not be deprived of any of his rights.” Similar decisions followed
in the 1970s. See also Kroh v. R. (1975), 24 Chitty’s L.J. 345 (Ont. Prov. Ct.); R. v. Nicholson,
[1950] 2 W.WR. 308, 98 C.C.C. 291 (B.C.S.C.). See also supra notes 85-87.
95See supra note 88.
96R. v. Snarch, [1969] 4 C.C.C. 284 (Que. Sup. C).
19931
NOTE
The procedural informality under subsection 5(2) and section 17 was fur-
ther encouraged by restricted rights of appeal under section 34 and the lack of
a time limit in the Criminal Code on instituting summary proceedings. No rules
of court existed governing procedure or dispositions and the hearings depended
heavily on guilty pleas and admissions. As explained by Fox and Spencer, this
led courts to confuse the adjudicative and dispositional stages of the process and
to blur the distinction between the different evidentiary sfandards applicable to
each.97 Often, the court would use a plea or a finding of guilt as merely a means
by which to implement the proper rehabilitative measures.
As a reaction to this type of procedural informality, the influence of the due
process movement in Canada was felt as early as 1963 when the Canadian Cor-
rections Association recommended that youths should have the same legal pro-
tections as adults and a right to appeal from juvenile court decisions.s This rec-
ommendation, among others, was adopted by the Justice Committee in 1965.”9
2.
Bill C-192
As we have seen, the criticisms made of the JDA by the labelling theorists,
the behavioural psychologists and the due process advocates were reflected in
the Report in 1965. This Report, in turn, played a key part in the legislative
process to follow. In 1967, the Government circulated a draft bill to academics
and the provinces, and a federal-provincial conference was held in 1968. After
the conference, the drafting process continued and on November 16, 1970, Bill
C-192 was introduced in the House of Commons.’
Three main policy objectives were sought in Bill C-192, and these each
reflected criticisms which had been made of the JDA The first was the redef-
inition of the grounds upon which a child could be tried in juvenile court. The
second was the modification of the age group over which the juvenile court had
jurisdiction. The third was the introduction of due process protections in juve-
nile courts.
The first of these changes was the redefinition of the grounds upon which
a child could be tried in juvenile court. As we have seen, subsection 2(1) of the
JDA defined “juvenile delinquency” to encompass violations of the Criminal
Code or provincial statutes, municipal by-laws or “sexual immorality or any
similar form of vice.” This provision was criticized by labelling theorists who
argued that it cast too wide a net and resulted in unnecessary and stigmatizing
convictions for otherwise normal children.” The new legislation narrowed sig-
(1972) 14 Crim. L.Q. 172 at 200.
97R.G. Fox & M.J. Spencer, “The Young Offenders Bill: Destigmatizing Juvenile Delinquency?”
98Canadian Corrections Association, supra note 67 at 9.
99Report, supra note 35 at 292.
“Supra note 37.
10 1See generally Fox & Spencer, supra note 97.
1 2For example, Parker referred to a juvenile court decision in which the judge held that a glue
sniffer was delinquent in that he had engaged, according to s. 2(h) of the JDA, in “sexual immo-
rality or any similar form of vice” (G. Parker, “Glue Sniffing” (1968) 10 Crim. L.Q. 365). In total,
14.1% of all the juveniles charged in 1968 were charged under provincial statutes or municipal
REVUE DE DROIT DE McGILL
[Vol. 38
nificantly the range of available offences by eliminating provincial and munic-
ipal offences and restricting the federal offences to those contained in the Crim-
inal Code. 3 The reasoning for this reform was that by decriminalizing many
forms of behaviour, such as sexual immorality or incorrigibility, the government
could “cease stigmatizing deviant but non-criminal behaviour in young persons
and recognize only offences for which penalties are imposed when committed
by adults.””t4
A second change was the modification of the age group over which the
juvenile court had jurisdiction. As we have seen, the maximum and minimum
ages under the JDA fell prey to criticisms from both the behavioural psychol-
ogists and the labelling theorists. Following these criticisms, the government
suggested changes in the age jurisdiction of the juvenile court. First, they pro-
posed that the minimum age under Bill C-192 be raised from seven years to ten
years.’ Although Solicitor General Goyer made no reference to the reasoning
behind this change, it was clearly an implementation of the recommendation
contained in the 1965 Report which was, in turn, a response in part to the
increasing psychological evidence of a distinction between children and
youth. 6 Second, the government proposed under Bill C-192 a raising of the
maximum age from sixteen to seventeen, with an option for any individual
province to raise their age to eighteen. 7 Again, this was an implementation,
albeit incomplete, of the Report, which recommended a uniform maximum age
of eighteen. The raising of the minimum and maximum ages was consistent
with similar trends in other countries,’0 8 and with some influential suggestions
in the Canadian context.’ 9
The third change under Bill C-192 was the introduction of due process pro-
tections in juvenile courts. As has been discussed previously, the JDA specified
very few due process rights for juvenile courts. Under Bill C-192, the govern-
ment introduced more formal procedural guarantees for young offenders. The
Solicitor General stated: “Unlike the Juvenile Delinquents Act, the proposed
legislation offers a procedural framework with clearly defined limits. It is a
by-laws. See Ministry of the Solicitor General, Report of the Federal-Provincial Joint Review
(Ottawa: Solicitor General, 1974) at 17.
103There was geneial approval for this change at the time. See Ministry of the Solicitor General,
Discussion Papers for the Federal-Provincial Conferences on Young Persons in Conflict with the
Law (Joint Review Group) (Ottawa: Solicitor General, 1974) at 6.
1’4Solicitor General Goyer, House of Commons Debates (13 January 1971) at 2373.
105Bill C-192, supra note 37, s. 12.
“mSee Report, supra note 35 at 40-54.
107Bill C-192, supra note 37, ss. 2(c), 3.
10 At the time of the proposed legislation, minimum ages in England, Sweden and Scotland had
been raised to fourteen. See Ct&-Harper, supra note 26 at 494. A 1955 United Nations Report
reported that a maximum age of eighteen was “most preferred in Europe, North America and Latin
America.” The Report noted that this maximum had been recommended in two previous seminars
and that “[t]he recommendation has been based on the proposition that adult ways of thought and
behaviour are not usually attained before this age, and that juveniles before could profit by mea-
sures of protection and guidance” (U.N. Secretariat, “The Prevention of Juvenile Delinquency”
(1955) 7 Int’l Rev. Crim. Pol’y 1 at 13-15).
109The Prdvost Commission, for example, recommended special legislation and correctional ser-
vices for those falling in the 18 to 21 age group (supra note 72 at 108).
19931
NOTE
question of protecting the interests of the young person and at the same time of
providing him with all necessary legal safeguards.. 1. With this in mind, Bill
C-192 introduced many more legal safeguards than existed previously under the
JDA.”‘
It is clear, in light of the three major reforms introduced in Bill C-192, that
the proposed legislation represented a dramatic move away from the parens
patrice model. It is also clear that Canadians were not ready in 1970 to accept the
reforms contained in Bill C-192. The Bill, after passing first reading, was referred
to the Standing Committee on Justice and Legal Affairs and then left to die on
the order paper. The government abandoned the Bill in response to substantial
opposition froiii interest groups, Parliamentarians and the media. Opposition to
the Bill was hardened by the general impression that the government had not con-
sulted sufficiently with experts and interest groups in the field after the 1967
federal-provincial conference.’ The two principal bases for this opposition were,
first, provincial complaints about the potential cost of raising the maximum age,
and, second, a philosophical reluctance to abandon parens patrice.
The provincial concerns about raising the maximum age were related
largely to the cost of implementing the new legislation. The major source of fed-
eral funding for the juvenile justice system was the Canada Assistance Plan,”3
under which the federal government paid fifty per cent of the provincial costs
“”House of Commons Debates (13 January 1971) at 2372.
“‘For example, it abolished s. 17(1) of the JDA, which permitted informality both at trial and
at the disposition stage. S. 57(1) of Bill C-192, supra note 37, stated that the provisions of the
Criminal Code dealing with summary convictions would apply to juvenile proceedings. Rights of
appeal were allowed to the Court of Appeal and Supreme Court (ss. 51-56). Bill C-192 also
imposed the same time limits that applied to adults on the adjudication of juvenile proceedings (s.
5(2)) and specific practices were established for warrants (ss. 7 and 10(1)), summons (s. 9) and
the laying of informations (s. 8(1)). Moreover, a new provision in Bill C-192 stated that predispo-
sition reports could not be disclosed to, or received by, a judge until after he or she had made a
finding that the young person had committed an offence, and no statements made by the young
person in that report would be admissible against him or her in an adjudication over guilt (s. 35).
As Fox and Spencer noted, this was perhaps the clearest attempt to remedy the blurring of adju-
dicative and dispositional functions under the JDA as it would have forced the court to make a find-
ing of guilt before the process of rehabilitation could begin (Fox & Spencer, supra note 97 at 202).
Perhaps most importantly, however, Bill C-192 contained a provision which stated that the young
person had the right at all stages of the proceedings to be assisted by “counsel, a parent or some
adult who in the opinion of the judge is capable of advising the young person” (s. 26(2)). While
under s. 31 of the JDA, the youth had the right only to be accompanied in juvenile court by a pro-
bation officer, this reform essentially guaranteed the youth independent representation (s. 16(1)
specified that a notice to parents and accused had to specify that the child had the right to be rep-
resented by a lawyer; s. 26(2) stated that at the appearance of the adolescent, the court could not
accept a confession without the child being represented by a lawyer, father or mother or a capable
adult).
” 2For example, the Anglican Bishop of Toronto, in Standing Committee hearings, noted that
there had been insufficient consultation during the process with provincial and federal governments
as well as experts. House of Commons, Minutes of Proceedings and Evidence of the Standing
Committee on.Justice and Legal Affairs (16 September 1971) at 31:6 [hereinafter Standing Com-
mittee). Eldon Woolliams made the same complaint in the House of Commons Debates (13 January
1971) at 2375.
I 3R.S.C. 1970, c. C-i, s. 5(1).
McGILL LAW JOURNAL
[Vol. 38
relating to “welfare services.” Unfortunately, “welfare services” did not include
any service relating wholly or mainly to corrections or to provincial capital
costs.”4 As a result, this excluded from federal support the extra correctional
facilities which would have been required for those young offenders who would
be brought under the aegis of the new legislation by the raising of the maximum
age. This was not a problem for those provinces which already had maximum
ages of eighteen (British Columbia, Alberta, Manitoba, Quebec), but was a
major financial blow to those with maximum ages of sixteen years (Ontario,
Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island). Ontario,
in particular, expressed its displeasure, complaining that the reforms would cost
its Ministry for Correctional Development $20 million in new accommoda-
tion.”‘ Of equal importance in 1970 were the philosophical concerns that the
modifications to parens patrie were too radical. The Canadian Mental Health
Association led the opposition to Bill C-192, claiming that it was too legalistic
and retrogressive, and terming it a “Criminal Code for children which is dis-
tasteful in its terminology, legalistic in its approach, and punitive in its effect.”.. 6
The Globe & Mail followed suit by calling the Bill “retrogressive.””‘ 7 In the
House of Commons, opposition to the Bill was also strong and many members
of the House expressed regret that the government had not followed the English,
Scottish or Swedish moves to more rehabilitative approaches.” 8 John Gilbert,
for example, stated that “every time I read Bill C-192, I wonder who is respon-
sible for this criminal law monstrosity, this caveman’s approach to young peo-
ple, this bill of legal rights for social wrongs.””.9 As if to confirm these doubts
about the Bill, the Solicitor General himself admitted during second reading that
“[u]nanimity could not be achieved on all the proposed reforms, and some com-
promise solutions had to be adopted in order to win approval by a majority of
the delegates. Consequently … the bill which I am submitting to you today for
second reading is certainly not perfect.”‘2
1141bid., s. 2.
1151n the 1968 Proceedings of the Federal-Provincial Conference on Juvenile Delinquency
(Ottawa: Solicitor General, 1968) at 9-10, the representative for Ontario stated:
may I express what has been our very great concern in my own proyince, which is that
by raising the age to include the 16-year old we are thereby bringing into this area of
responsibility one of perhaps the most difficult age groups with which we have to deal,
and that we are increasing our responsibility to an extent that again in my own province
raises serious questions about facilities and the financial responsibility for those facil-
ities … [W]e would immediately be faced with the problem of providing training school
facilities, with all that involves, for something ranging between 400 and 500 persons
in this age bracket.
At the conference, those provinces supporting the maximum 17 or 18 age were Quebec, Manitoba,
British Columbia, Newfoundland, Alberta, New Brunswick, Prince Edward Island. Those against
were Nova Scotia, Saskatchewan, Ontario.
’16Cited from House of Commons Debates (13 January 1971) at 2375. See also Standing Com-
mittee (17 June 1971), supra note 112 at 28:5-13.
1TSee House of Commons Debates (13 January 1971) at 2433.
118See e.g. Standing Committee (17 June 1971), supra note 112 at 28:34 and House of Commons
Debates (13 January 1971) at 2432. See also J.A. MacDonald, “A Critique of Bill C-192: The
Young Offenders Act” (1971) 13 Can. J. Crim. & Corr. 166 at 176-79.
19lHouse of Commons Debates (13 January 1971) at 2381.
120louse of Commons Debates (13 January 1971) at 2370.
19931
NOTE
There were several provisions of Bill C-192 that critics found particularly
objectionable.”‘ But, perhaps most importantly, many critics denied that the
parens patrice approach had failed. 22 Instead, they maintained that the system
had not been given sufficient resources to work as it could. As John Gilbert put
it: “The difficulty is not in the basic philosophy of the Juvenile Delinquents Act,
but in the failure of society to give to the juvenile court adequate resources to
fulfil the aims of the philosophy, the philosophy of wanting young persons to
become law-abiding citizens and directing treatment with regard to their reha-
bilitation. ” “z
In 1970, many adherents to the rehabilitative approach still believed
strongly in the philosophy underlying the JDA.n4 This was reflected in the work
of such authors as Brian Grosman who, in a critique of Bill C-192, stated that
“[pirocedural protections… will seriously damage any attempt to reintegrate the
juvenile and treat him within the community” and that “[e]very effort should be
directed to oppose the advent of rigid adversary procedures that will bring hos-
tility and social ostracism to the juvenile.””
Looking at the death of Bill C-192, it is our opinion that the proposed
reforms were misunderstood by many of the politicians and interest groups who
opposed the Bill. The critics of the Bill were correct in pointing out that the
reforms introduced in Bill C-192 were in conflict with the rehabilitative philos-
ophy of the JDA. However, the fact that the Bill was an attempt to move away
from parens patrice did not in itself render it “retrogressive” or “punitive.”
121The provisions drawing the most criticism were ss. 30(1) and (4) (supra note 37), which
allowed for a young offender committing an offence meriting life imprisonment or the death pen-
alty in the adult system to be placed in training school and then retried at the age of 21 in adult
court. The combined effect of these provisions, critics noted, was to make possible the life impris-
onment of a 10-year-old child committing murder. See M. Tadman, “A Critical Analysis of Bill
C-192: The Young Offenders Act” (1970) 4 Man. L.J. 371 at 378-79; MacDonald, supra note 118;
Standing Committee, supra note 112 at 32:26. Critics also objected to the rules in C-192 regarding
fingerprinting. Under s. 74(l) of Bill C-192, the police could ask a judge for the issuing of an order
with a view to taking the fingerprints of a child accused of an offence of which the equivalent is
an offence under the Criminal Code. Moreover, under s. 72 of Bill C-192, records could be kept
and the young offender as well as his or her lawyer, the Attorney-General, judges or children’s aid
societies would have access to these records. The chorus of criticism was heightened by the due
process activists who also found reason to criticize the Bill. In particular, they felt that the rules
regarding legal representation did not go far enough because they did not guarantee the young per-
son counsel or legal aid. The Canadian Mental Health Association, for example, suggested legal
aid as a right in cases involving young offenders (Standing Committee, supra note 112 at 28:7-8).
Lack of a right to legal aid, they argued, would make due process illusory for children without the
resources to pay for a lawyer.
’22The most influential critic was the Canadian Mental Health Association, which stated in the
Senate hearings that “our general philosophy has been that in dealing with children there must con-
tinue to be a wide discretion in the hands of the wise judge to do what is just and proper and that
the juvenile court proceedings must not be dominated by cumbersome rules and procedures”
(Standing Committee, ibid. at 28:6).
lt3House of Commons Debates (13 January 1971) at 2382.
124’The Canadian Psychiatric Association, for example, objected to the imposition of limited dis-
positions as they felt that this would impede rehabilitation. See Standing Committee, supra note
112 (16 September 1971) at 31:23. See also Tadman, supra note 121 at 380.
IsB.A_ Grosman, “Young Offenders Before the Courts” (1971) 2:2 Can. Bar Assoc. J. 6 at 7.
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Indeed, the due process and symbolic interactionist reformers of the 1960s saw
decriminalization and due process as means to curtail aspects of parens patrice
which they saw as retrogressive and overly punitive.’26 As Francis Allen put it:
“Measures which subject individuals to the substantial and involuntary depriva-
tion of liberty are essentially punitive in character, and this reality is not altered
by the fact that the motivations that prompt incarceration are to provide therapy
or otherwise contribute to the person’s well-being or reform.”2 7
By implementing due process measures and circumscribing the punitive
power of the juvenile court, the reformers believed that they were, in fact, pro-
moting the “welfare” of children. For example, Grygier found that children
under the JDA felt that they were treated as “lesser” human beings precisely
because the procedures used under the JDA were informal and arbitrary.”
According to this study, in treating these children with a lack of respect, the
courts under the JDA served to lower their sense of self-worth and to reinforce
their perceptions of themselves as deviant members of society. A similar view
was taken by Matza in his influential book Delinquency and Drift.29 The juve-
nile’s standards of justice, he observed, are highly legalistic. 3′ When these
standards come into conflict with the individualized justice of the parens patrice
system, delinquents feel a sense of resentment about the injustice inherent in the
system:
How do the workings of this arrangement appear to juvenile delinquents? The
answer may be simply stated. It appears unjust –
rampantly so. Few delinquents
can do more than express a simmering sense of injustice. They cannot explain why
they sense injustice … mainly because they, like everyone else, are mystified by
what goes on in court.13′
1261n the United States there was great concern about the abuses and cruelties being imposed on
juveniles in training schools. Rector and Gilman, for example, in a survey of training school
abuses, cited reports in Texas, Illinois and Pennsylvania, which described beatings, chemical con-
trols and mental abuse. A Pennsylvania report concerning juvenile detention facilities stated that,
in these institutions, there were “young persons thrown into dark cells. for trivial reasons; personal
dignity assaulted; basic safety rules ignored –
one may begin to wonder whether there is a special
breed of monsters which operates in training schools” (Pennsylvania Program for Women and Girl
Offenders, Child Abuse at Taxpayers’ Expense: A Citizens’ Report on Training Schools in South-
eastern Pennsylvania (Media, Pa.: Friends Suburban Project and Youth Advocate, Inc., 1974) at
43, cited in M. Rector & D. Gilman, “How Did We Get There and Where Are We Going? The
Future of the Juvenile Justice Courts” at 85 [unpublished]). Moreover, the article noted that many
of the juveniles subjected to these brutal conditions were guilty of such minor offences as running
away and truancy (ibid. at 84). While evidence of abuse came mainly from the United States, con-
cem was nonetheless growing in the Canadian context. W.T. Outerbridge, for example, referred in
an article to the “tyranny of treatment” in the Canadian context (W.T. Outerbridge, “The Tyranny
of Treatment …?” (1968) 10 Can. J. Corr. 378).
127F.A. Allen, “Criminal Justice and the Rehabilitative Ideal” in W. Petersen & D. Matza, eds.,
128T. Grygier, “The Concept of the ‘State of Delinquency’: An Obituary” (1966) 18 J. Leg. Ed.
131; T. Grygier, “Social Adjustment, Personality and Behaviour in Training Schools in Ontario:
A Research Report” (Toronto: Department of Reform Institutions and the University of Toronto,
1966). See also B. Maher & E. Stein, “The Delinquent’s Perception of the Law and the Commu-
nity” in S. Wheeler, ed., Controlling Delinquents (New York: Wiley, 1968) 187.
Social Controversy (Belmont: Wadsworth, 1963) 114 at 120.
129D. Matza, Delinquency and Drift (New York: Wiley, 1964).
1301bid. at 103.
‘1 Ilbid at 132. In a later study by LA. MacDonald of training schools in B.C., MacDonald made
1993]
NOTE
Given these arguments, it seems that some critics of Bill C-192 were trad-
ing unjustifiably on a semantic ambiguity in the term “legalistic.” For, while the
reforms were “legalistic” in the sense that they offered youths accused of
offences a legal shield, they were not legalistic in the sense of an attempt to
apply more legal sanctions to juveniles. The reforms in Bill C-192 may have
been “legalistic” but this did not in itself make them “punitive.”
3.
The Renewed Process of Reform
The demise of Bill C-192 did not spell the end for the process of juvenile
justice reform in Canada. Shortly after the Bill died on the order paper, a Solic-
itor General’s special committee was established to reassess the nature of the
reforms required to the JDA. Four years’later, the Solicitor General released a
report entitled Young Persons in Conflict with the Law.’32 This report was highly
influential and laid the fundamental philosophical foundations for draft legisla-
tion in 1977 and 1979 and for the YOA eight years later. Significantly, in the
renewed period of reform following the death of Bill C-192, many of the pro-
posals which were so forcefully rejected in 1971 were reintroduced in YPICL
and ultimately incorporated, with substantial consensus, into the YOA -in 1982.
The opposition to Bill C-192, so strong in 1970, had virtually evaporated by
1982.
How is this change in the reaction to the proposed legislation to be
explained? In our opinion, the change in the 1970s and early 1980s can be
attributed in large part to three important developments. The first two of these
developments were philosophical and the last was political. First, in the early
1970s, criminologists began to establish that the rehabilitative techniques
employed under the parens patrice system had been ineffective in preventing
recidivism. Second, also in the early 1970s, many academics and professionals
began to stress the virtues of community-based or “diversionary” alternatives to
incarceration. The force of these developments was such that, by the late 1970s,
a substantial consensus had developed in academia that parens patriae had to be
replaced. Third, by the early 1980s, Canadians on the whole were becoming
more conservative in outlook and concern was growing about a substantial
growth in juvenile.crime. The introduction of new juvenile justice legislation
was a way for governments to convince Canadians that they were acting to
reduce the juvenile crime problem.
The first, and perhaps the most influential, of these developments was the
growing belief among academics in the early 1970s that rehabilitation had been
ineffective in preventing recidivism. Interestingly, studies demonstrating the
a similar finding. He found that many of the inmates perceived their committal as unfair precisely
because they were committed for behaviour that would not be an offence for adults. These youths
were unresponsive to treatment and saw treatment as nothing more than punishment. See J.A. Mac-
Donald, “Juvenile Training Schools and Juvenile Justice Policy in British Columbia” (1978) 20
Can. J. Crim. 418 at 426-27. See also K. Catton, “Children in the Courts: A Selected Empirical
Review” (1978) 1 Can. J. Fain. L. 329 at 345, who argued that a lack of understanding of the legal
process can lead to negative attitudes toward the law as a whole.
132YPICL, supra note 38.
McGILL LAW JOURNAL
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ineffectiveness of rehabilitative programs existed well before the 1970s. Dating
back to the 1930s, a number of studies had demonstrated that rehabilitation pro-
grams did not work any better than simple incarceration.’33 At the time, how-
ever, authors in the field were either unable or unwilling to draw the conclusion
that the available evidence might throw rehabilitative penal philosophy into
doubt. Indeed, as McMahon points out, the recurrently negative findings con-
ceming the effectiveness of rehabilitation were often interpreted in the literature
not as throwing rehabilitation into doubt but, ironically, as a justification for
more intensive rehabilitative treatment.’34
The important change in the early 1970s, then, came not from the data
available but from how that data was interpreted. In this respect, the work of
American writers, particularly that of Martinson, was highly influential in Can-
ada. In 1974, Martinson published an article135 in which he analyzed 231 studies
concerning the effectiveness of rehabilitation in different countries from 1945
through 1967. He concluded:
I am bound to say that these data … are the best available and give us very little
reason to hope that we have in fact found a sure way or reducing recidivism
through rehabilitation. This is not to say that we have found no instances of suc-
cess or partial success; it is only to say that these instances have been isolated, pro-
ducin no clear pattern to indicate the efficacy of any particular method of treat-
ment.f
36
In coming to this conclusion, Martinson also cast doubt on the whole idea
of “treatment” as a philosophy:
our present treatment programs are based on a theory of crime as a “disease” –
that is to say, as something foreign and abnormal in the individual which can pre-
sumably be cured. This theory may well be flawed, in that it overlooks –
indeed,
denies –
both the normality of crime in society and the personal normality of a
very large proportion of offenders, criminals who are merely responding to the
facts and conditions of our society.137
Martinson’s conclusion that “nothing works” in rehabilitative practice
became a catchword in criminology and had an enormous effect. In the wake of
Martinson’s study, other authors began to reach similar conclusions. 3 s For
133See e.g. S. Glueck & T. Eleanor, Five Hundred Criminal Careers (New York: Alfred Knopf,
1939); E. Powers & H. Witmer, An Experiment in the Prevention of Delinquency: The Cambridge-
Somerville Youth Study (New York: Columbia University Press, 1951); A.N. Weeks, “The High-
lights Project and Its Success” in N. Johnston, L. Savitz & M.E. Wolfgang, eds., The Sociology
of Punishment and Correction (New York: John Wiley & Son, 1962); and, generally, Outerbridge,
supra note 126 at 386.
134McMahon, supra note 33 at 14-15.
135R. Martinson, “What Works? – Questions and Answers About Prison Reform” (1974) 35
The Public Interest 22.
‘361bid. at 49.
1371bid.
13sL.C. Wilson noted that “[tihe difference in rates of prevention or rehabilitation among groups
receiving no treatment, those receiving casual counselling and those receiving intensive care is not
significant” (L.C. Wilson, “Parens Patria: The Unfulfilled Promise” (1976) 24 Chitty’s L.J. 325
at 327-30). Similarly, in 1977, J. Laplante concluded that “the view that training schools have
failed in rehabilitating young offenders is increasingly prevalent …” (J. Laplante, “Training
Schools – What Do They Accomplish?” (1977) 5 Crim. and/et Just. 110 at 110, 114). See also
19931
NOTE
example, after a review of the research on delinquency treatment programs,
O’Leary and Wilson concluded that these programs did not with any consist-
ency achieve their goals of rehabilitation and crime prevention. 39 Similar con-
clusions were reached by several authors in Canada. 4 Outerbridge, for exam-
ple, examined a number of studies and concluded that “even if we cannot accept
[the ineffectiveness of rehabilitation] as a reality today, we must be ready to face
the probability that it will be proven as valid tomorrow.””14 He then proceeded
to criticize the “sinister” school of thought which he said took the position that
“In The Face Of Failure, We Must Redouble Our Efforts.” 142 He feared that
demands by proponents of this view for more aggressive employment of coer-
cive psychological techniques and more authority over the people treated would
pose serious dangers to those being treated.
The findings about the ineffectiveness of rehabilitation fueled concerns
expressed by the due process reformers. For, When rehabilitative effectiveness
is cast into doubt, it calls into question the whole parens patrice project. The
essence of the parens patrie approach is that certain adult procedural safe-
guards can be forsaken in the juvenile process precisely because this allows the
courts and treatment facilities to help children. However, if the effectiveness of
this treatment is not evidenced, the result is a system which favours incarcera-
tion of children without at the same time serving to help them. We are left with
a system where “individual liberty may be imperiled by claims to knowledge
and therapeutic techniques that we, in fact, do not possess and by failure to con-
cede candidly what we do not know. 143
G. Johnston, “The Function of Counsel in Juvenile Court” (1969) 7 Osgoode Hall L.J. 199 at 201
and a 16-part series by M. Valpy concerning training schools in The [Toronto] Globe & Mail (10
23 April 1973) for concerns expressed about rehabilitation prior to Martinson’s work.
February –
139K.D. O’Leary & G.T. Wilson, Behavioral Therapy: Application and Outcome (Englewood
Cliffs, N.J.: Prentice-Hall, 1975). They concluded: “Treatment programs for delinquents have been
notoriously unsuccessful, as indicated by the high recidivism rates usually reported … Even those
treatments which are successful on a short-term basis have usually failed to document any long-
term difference over similar nontreated youth in such variables as number of offences” (ibid. at
196).14 0R. Steinberg, for example, argued that
in a significant number of protection or delinquency cases, the result of making the
material finding of fact is the removal of a child from his home to either an industrial
home, training school, or foster home –
all institutions which have been established
presumably for the betterment of the child. One must then ask, are these resources
capable of achieving the goals which legislation has dictated? It is my view that if these
resources are inadequate or if a child is wrongly placed in a resource, the placement
is not protection but a cruet punishment (Steinberg, supra note 84 at 241).
See also L. Kupperstein, ‘Treatment and Rehabilitation of Delinquent Youth: Some Sociocultural
Considerations” (1971) 4 Acta Crim. 11 at 16, 98, where she argues that the mere imposition of
rehabilitation programs does not guarantee their effectiveness. Indeed, a poor program can have
“unintended consequences” of “frustration, hostility, alienation and deviance” (ibid. at 16). Too
much emphasis, she claimed, was placed on traditional clinical or psychogenic approaches and not
enough on innovative treatment alternatives.
14 1Outerbridge, supra note 126 at 378-79.
‘ 421bid, at 383.
143F.A. Allen, “Criminal Justice, Legal Values and the Rehabilitative Ideal” (1959) 50 J. Crim.
L. Crim. & Police Sci. 226 at 230.
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[Vol. 38
One of the original motivations behind the institution of the JDA was to
alleviate the harshness of the criminal law as applied to juveniles by developing
a separate system of juvenile justice. The problem by the 1970s was that the
juvenile delinquency system had imported many of the harsh aspects of the
criminal law system without having tempered these with any of the vaunted
advantages of a separate system of justice. As Fortas J. observed in Kent:
While there can be no doubt of the original laudable purpose of juvenile courts,
studies and critiques in recent years raise serious questions as to whether actual
performance measures well enough against theoretical purpose to make tolerable
the immunity of the process from the reach of constitutional guaranties applicable
to adults … There is evidence, in fact, that there may be grounds for concern that
the child receives the worst of two worlds: that he gets neither the protections
accorded to adults nor the solicitous care and regenerative treatment postulated for
children. 144
While the work being done in the 1970s on rehabilitation was reinforcing
claims about the need for greater due process, a number of theorists were also
beginning to question the need for institutional treatment of juvenile delin-
quents. Many authors took the “nothing works” conclusion to point to a need
to reduce the number of juveniles entering the juvenile justice system. In the
early 1970s, the concern about the effectiveness of incarceration led to an
attempt to develop alternatives to prosecution and incarceration known under
the term of “diversion.”
“Diversion” is a broad term used to encompass community absorption
plans, police screening, pre-trial diversion and alternatives in sentencing,
including restitution, fines and probation. 45 As noted by Osborne, “[d]iversion
has -two aspects: keeping the offender out of the criminal justice system alto-
gether or keeping him [or her] out of the formal criminal justice system but redi-
recting him [or her] into an informal system.”’46 Both of these approaches relate
to the concerns expressed by the labelling theorists that the juvenile process is
stigmatizing and that non-judicial community alternatives would prove to be
less harmful for the juvenile offender. The idea underlying diversion, then, was
that the court is “properly an agency of last resort for children, holding to a doc-
trine of appeals courts which require that all other remedies be exhausted before
a case will be heard.”’47 The motto adopted by theorists such as Schur, who
advocated “radical non-intervention,” was to “leave kids alone whenever possi-
ble.”4s
Printer, 1975) at 1.
44Kent, supra note 81 at 555-56.
145Law Reform Commission of Canada, Diversion (Working Paper No. 7) (Ottawa: Queen’s
146J.A. Osborne, “Juvenile Justice Policy in Canada: The Transfer of the Initiative” (1979) 2
147 President’s Commission, supra note 44 at 96.
148E. Schur, Radical Nonintervention: Rethinking the Delinquency Problem (Englewood Cliffs,
N.J.: Prentice-Hall, 1973) at 155. A similar point was made by J. Thomson in “The Child in Con-
flict with Society” (1973) 11 R.FL. 257 at 262:
Can. J. Fam. L. 7 at 23.
the vision of reality which continually attracts new disciples is the following: that, apart
from a relatively small number of cases, it is probably better for all concerned if the
young offenders were not detected, processed, treated or institutionalized. Too many
1993]
NOTE
The concept of diversion played only a minor role in the 1965 Report,49
but it was more forcefully endorsed in the 1969 report of the Canadian Commit-
tee on Corrections5 and the 1975 Law Reform Commission’s Working Paper
on Diversion.”‘ At the same time, similar concepts were ev6lving in England,
Scotland and the United States. For example, in the United States, many
informal pre-trial screening programs were developed after the President’s
Commission on Law Enforcement and the Administration of Justice strongly
advocated the concept in 1967.152 These programs were observed carefully in
Canada”5 3 and, by the early 1970s, diversion had gained substantial credibility.5″
With the growth of diversion as a concept and the increasing evidence
pointing to the ineffectiveness of rehabilitation in preventing recidivism, the
steadfast adherence of many academics and social workers to parens patrie
began to crumble. By the mid-1970s, four reform-based themes began to gain
increasing popularity in criminology: decriminalization, diversion, due process
and deinstitutionalization.”‘ This ideological shift led Leblanc to state in 1978
that “decriminalisation, diversion and deinstitutionalization” were “la doctrine
dominante i la criminologie contemporaine.”’56
These academic arguments were not, however, the only reason for the
move away from parens patrice. While the theoretical foundations for the JDA
were crumbling in the mid-1970s, there was at the same time a growing fear in
the population about rising juvenile crime. This corresponded with a general
move to the right in Canada during the late 1970s, as the liberal idealism of the
early 1970s gave way to a more conservative mood which, in turn, had an effect
on juvenile justice policy. MacDonald, for example, noted that-while British
Columbia policy from 1969-1975 was unique in its “progressive, enlightened
children deteriorate while in care. Furthermore, the problem would remain even if we
had unlimited resources at our disposal.
4 9Report, supra note 35 at 88.
150″Unless there are valid reasons to the contrary the correction of the offender should take place
in the community” (Canadian Committee on Corrections, Toward Unity: Criminal Justice and Cor-
rections (Ottawa: Queen’s Printer, 1969) at 277).
‘I5 Supra note 145.
‘-2Supra note 44.
’53For example, in a 1971 article, J.M. Gandy noted that “in recent years one aspect of the con-
trol and prevention of juvenile delinquency that has received considerable attention is the devel-
opment of alternatives to formal adjudication” and referred in particular to “the use of community
agencies outside the formal juvenile justice system” as an “attractive” option. He exclaimed opti-
mistically that “today, for the first time in forty years, prospects for far-reaching reforms are dis-
tinctly favourable” (J.M. Gandy, “Rehabilitation and Treatment Programs in the Juvenile Court:
Opportunities for Change and Innovation” (1971) 13 Can. J. Crim. & Corr. 9 at 12, 14, 21).
l5’ For example, as early as 1970, Dr. M.Q. Warren was able to state that “the operational fea-
sibility of treating a large proportion of the delinquent population in the community, without prior
institutionalization, has been clearly demonstrated” (M.Q. Warren, “The Case for Differential
Treatment of Delinquents” (1970) 12 Can. J. Corr. 451 at 459).
155Empey, supra note 50 at 532.
15 6M. LeBlanc in 1978 called “decriminalisation, diversion and due process” “les trois des” and
stated that “le vent des trois d6s souffle partout” (M. Leblanc, “D~criminalisation, d6judiciarisa-
tion, d~institutionnalisation: De la doctrine, de la science et de l’application” (1979-80) 7/8 Crime
andlet Justice 48). According to B. Dickens, the ideas of decriminalization, due process and diver-
sion had, by 1975, become “mainstream” (Dickens, supra note 52 at 217).
McGILL LAW JOURNAL
[Vol. 38
and humane” emphasis on deinstitutionalization and community-based
resources, after 1975 “as social and economic problems grew more pressing, the
outlook of the average citizen became more conservative.”‘ 57 The result was a
subsequent de-emphasizing of the progressive trends manifested earlier in the
decade. By the late 1970s there were increasing calls in the media for the gov-
emnment to “crack down” on juvenile crime which many citizens felt was
becoming intolerable.’
The shift in public mood was also reflected in academic literature, where
some authors began to stress the virtues of a “just deserts” juvenile system based
on responsibility and accountability.’ 9 In response to the parens patrice system,
which was based on the assumption that the causes for juvenile delinquency were
environmental and pathological, these authors pointed to the fact that juvenile
delinquents make a choice when they commit crimes. The fact that the young have
diminished moral and cognitive skills, they argued, should not lead us to believe
that juveniles have no free will. Rather, as with adults, we should approach the
degree of free will exercised by a youth on a case-by-case basis.
Interestingly, this response to parens patriae was a reassertion of the clas-
sicist view of criminology as against the positivist view which replaced it close
to a century before.” Furthermore, the “just deserts” school of thinking about
juvenile justice thus tied in comfortably with the due process school. Since both
schools assumed that coercive treatment by the state was essentially punish-
ment, both concluded that state intervention should be strictly limited to cases
where guilt could be established beyond a reasonable doubt. According to both
schools, then, the advantage of “punishment” over “treatment” was two-fold.’6′
First, punishment clearly implies limits, whereas treatment does not. Since treat-
ment is for the benefit of the child, the length of treatment is logically irrelevant.
By contrast, punishment is limited by a certain, albeit imperfect, proportionality
between offence and desert. Second, punishment calls attention to itself as a
necessary evil or device which society uses as a last resort in order to protect
its most central interests. Public punishment is intentionally degrading and stig-
matizing. Treatment employs the same methods but is supposedly for the good
of the child. Both due process and “just deserts” theorists refused to accept this
seventy-year justification for parens patrice.
By the late 1970s, then, the dissatisfaction with the JDA was much deeper
than it had been at the time of Bill C-192. While the reform movement in the
157MacDonald, supra note 131 at 433-34.
158By 198 1, some of the headlines in the papers read: “Winnipeg ‘Kiddie Crime’ Rate Climbing
to Big Leagues: Juveniles Committing Adult Crimes as Justice, Social Agencies Try to Cope” Win-
nipeg Free Press (17 February 1981) 2; “Frustrated Vancouver Parents Want Tougher Line on
Delinquent Kids” Vancouver Sun (25 March 1981) A3; “Statistics That Scare Society: The 60%
Increase in Violent Juvenile Delinquency is Scary” Maclean’s (4 May 1981) 2.
159For example, D. Fogel, We Are the Living Proof. The Justice Modelfor Corrections (Cincin-
nati: Anderson, 1979); A. Von Hirsch, Doing Justice: The Choice of Punishments (New York: Hill
and Wang, 1976).
16Supra note 17 and accompanying text.
161S. Fox, “The Reform of Juvenile Justice: The Child’s Right to Punishment” (1974) Juvenile
Justice 2 at 4.
19931
NOTE
1960s had been fueled largely by labelling theorists and due process activists,
the renewed reform movement in the 1970s attracted a broader range of inter-
ests. Predictably, these diverse concerns were not fully compatible. For, while
many reformers wished to deinstitutionalize the juvenile justice system and to
introduce community-based treatment programs, others wanted to make youth
more accountable and to introduce more protections for society from juvenile
crime. Thus, while all the reformers wanted to discard parens patrile and to
reduce the jurisdiction of the juvenile courts, their hopes for the justice system
which was to replace ‘the JDA were significantly different.
IL The Young Offenders Act: An Evaluation of Three Guiding Principles
In the period from 1975 to 1982, three separate governments made
attempts to draft legislation based on some of the suggested reforms. Eventually,
Bill C-61 was introduced in 1982 and, with general approval, passed as the
YOA. Solicitor General Robert Kaplan commented in his speech to the Senate
Committee on Justice and Legal Affairs at the time that he was “encouraged
with the support received to date from all sectors, including the media, and the
Parliamentary debate on second reading.”’62 Echoing this sentiment, Ray Hna-
tyshyn, then an opposition member, stated in the House that “Bill C-61 is wel-
comed literally by everyone in the justice field.”‘ 63
How, after years of debate and many failed proposals, did the government
gain such near unanimous support for Bill C-61? In our opinion, the explanation
for the “support from all sectors” is not that there was full agreement at the time
concerning the direction of juvenile justice in Canada. To the contrary, we
believe that the popularity of the YOA is best explained by the fact that it
reflected a compromise between a multiplicity of ideas and interests. In this next
section, we will examine the ambivalence in theoretical direction created by
these compromises under the YOA by focusing on the meaning and application
of three principles used in the Act: “special needs,” “protection of society” and
“least possible interference with freedom.” These principles are all contained
within the Declaration of Principle in section 3 and are intended to be employed
as fundamental interpretative concepts in various parts of the Act. However, as
we will demonstrate, these “guiding” principles are themselves highly ambigu-
ous because each of them represents not a single principle but a cluster of often
contradictory principles.
In its present form, the broad language of the Declaration of Principle gives
a large role to judicial discretion in the interpretation and application of the
YOA. Such discretion is vital given that youth courts must respond to a multi-
tude of community and individual needs.”6 However, while discretion is a nec-
162-House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Jus-
tice and Legal Affairs, 1st sess., 22nd Parl. at 61:8 (9 February 1982) [hereinafter Standing Com-
mittee].
16 3House of Commons Debates (15 April 1981) at 9312.
16The need for discretion in’the juvenile justice context has been recognized internationally in
the UN Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”), UN
REVUE DE DROIT DE McGILL
[Vol. 38
essary element in the juvenile justice context, we believe there should be limits
to its acceptable exercise. In particular, problems arise when the legislative lan-
guage is so broad and vague as to make a consistent interpretation of the leg-
islation virtually impossible. The need for a degree of certainty in legislative
language in the criminal law arises from the principle of legality and the impor-
tant interest which is at stake throughout the criminal process –
that of the
accused’s liberty. Williams, for example, has stated that the rule of law, and
more precisely the principle that there can be no crime or punishment except in
accordance with a fixed, predetermined law”6 operates as “an injunction to the
legislature not to draw its statutes in such broad general terms that almost any-
body can be brought within them at the whim of the prosecuting authority and
the judge.”‘” While Williams’ comments are limited to the idea that courts can-
not invent new punishments or exceed the statutory maximum, it has been
argued that the need to strive for clear and sensible legislative language extends
to the whole of substantive criminal law. 67
In its 1987 Report, the Canadian Sentencing Commission 68 interpreted the
requirement that criminal statutes be drafted in clear and concise language to
mean that “no word with several different meanings should be used in the for-
mulation of a statement: clarity implies the absence of equivocation.’ 1 69 In many
respects, the language of the YOA fails to meet this standard of clarity. The YOA
purports to direct the judge in his or her choice of responses to youth crime by
providing a set of principles which govern the application of the Act. However,
it is obvious from even a cursory reading of the YOA that the principles it sets
out raise a number of tensions. Despite the intuitive appeal of all these concepts,
they do not in themselves provide a coherent framework for dealing with young
offenders. Indeed, they are stated in such broad and vague terms that individual
judges must often resort to applying their own philosophies to individual
cases. 70 Rather than attempting to provide the courts with a collection of poten-
GAOR, 40th Sess., 96th Plen. Mtg., UN Doc. A/40/53 (adopted by the 7th UN Congress on the
Prevention of Crime and the Treatment of Offenders), art. 6.1, which provides as follows:
6.1 In view of the varying special needs of juveniles as well as the variety of measures
available, appropriate scope for discretion shall be allowed at all stages of proceed-
ings and at the different levels of juvenile justice administration, including inves-
tigation, prosecution, adjudication and the follow-up of dispositions.
Art. 6.3 of the same document creates an obligation on the part of persons charged with discretion
in the juvenile justice context to exercise their discretionary powers judiciously and responsibly.
165This idea is often expressed through the latin maxim Nullum crimen sine lege; Nulla pazna
sine lege.
Queen’s Printer, February 1987) at 133 [hereinafter Sentencing Commission].
166G. Williams, Criminal Law: The General Part (London: Stevens and Sons, 1961) at 575-76.
167See e.g. D. Stuart, Canadian Criminal Law, 2d ed. (Toronto: Carswell, 1987) at 21.
168Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa:
169Ibid.
170See A. Doob & L. Beaulieu, “Variation in the Exercise of Judicial Discretion with Young
Offenders” (1992) 34 Can. J. Crim. 35, for a dramatic illustration of this point. The authors of this
study interviewed 43 judges across Canada, and asked them to recommend sentences in 2 hypo-
thetical situations involving 4 young offenders. The judges were also asked to rank the relative
importance of the 5 traditional purposes of sentencing (punishment, rehabilitation, general deter-
rence, individual deterrence and incapacitation) for each of the recommended dispositions. There
was a great deal of variation in the responses of these judges with respect to both the types of sen-
1993]
NOTE
tial philosophical approaches, we believe that the legislators should be more
concerned with providing the courts with guidance in relation to specific prob-
lems under each section. In analyzing each of these principles, then, we will
provide specific recommendations as to the type of clarifications we feel are
necessary in relation to specific provisions.
A. Special Needs
The YOA was introduced as an attempt to remedy the shortcomings of the
parens patrite system. It was conceived as a move away from a treatment-
oriented model of juvenile crime, to a model which sanctions the offence based
on the responsibility of the actor.171 In contrast to the JDA, the YOA operates
according to the premise that young persons have both rights and responsibil-
‘ and that they should be held accountable for their wrongful behaviour.1 73
ities,’7
While the JDA was based on the assumption that a child’s behaviour is essen-
tially “determined” by his or her environment, the YOA is based on the assump-
tion that while society may bear a responsibility for the environmental condi-
tions which tend to generate conflict with the law, the individual behavioural
responses of young people to these conditions are the responsibility of the
young persons themselves. 74
The increased responsibility accorded to young persons does not mean that
young offenders under the YOA are to be treated like adults. Indeed, the assump-
tion that young offenders have “special needs” continues to play a central role
and is integrated into the YOA where, in paragraph 3(1)(c) of the Declaration of
Principle it is stated that “young persons who commit offences require supervi-
sion, discipline and control, but because of their state of dependency and level
of development and maturity, they also have special needs and require guidance
and assistance.” However, in our opinion, “special needs” must be given a dif-
ferent definition under the YOA than under the JDA. For, while “special needs”
under the JDA referred to the need for treatment and rehabilitation, the same
tences chosen and the priority of purposes to be accomplished. The authors of the study concluded
that judges attempt to achieve too many competing goals in fixing young offender dispositions. In
their view, this situation is imposed on 3udges as a result of the drafting of the YOA itself and in
particular s. 3. The failure of the legislature to establish a priority of purposes for sentencing under
the YOA has lead to the result that very different sentences can be legitimately ordered in the same
case.171J. Trdpanier, “Principles and Goals Guiding the Choice of Dispositions under the YOA” in
L. Beaulieu, ed., Young Offender Dispositions: Perspectives on Principles and Practice (Toronto:
Wall Editions, 1989) 27 at 28-31. A similar view is expressed in C. Manfredi, “The Young Offend-
ers Act and Juvenile Justice in the United States: Perspectives on Recent Reform Proposals” (1991)
6 Can. J. Law & Soc. 45 at 58, and in A. Leschied & P. Jaffe, “Dispositions as Indicators of Con-
flicting Social Purposes under the JDA and YOA” in Leschied, Jaffe & Willis, eds., supra note 3,
158.
172yOA, supra note 1, ss. 3(1)(a), 3(l)(e).
173Manfredi, supra note 171 at 58, argues that juveiile justice policy under the YOA has moved
away from a rehabilitative approach toward a greater concern with principles of individual respon-
sibility and accountability.
174D. Conly, “A Proposed Research and Evaluation Strategy for the Young Offenders Act” in
Evaluation of the Proposed Young Offenders Legislation (Ottawa: Ministry of the Solicitor Gen-
eral, 1979) at 6-7.
McGILL LAW JOURNAL
[Vol. 38
cannot be said under the YOA. Given the history of the reform process and the
due process orientation of the YOA, we believe that “special needs” under the
Act refers to the need for special protections for young offenders.
This interpretation is reinforced, in our opinion, by two facts. First, the
word “rehabilitation” is given little emphasis in the YOA. Second, the structure
of the YOA does not lend itself to a rehabilitative approach. With maximum sen-
tences of limited duration, restrictions on custody and the many due process
guarantees contained within the Act, specialists seeking to treat young offenders
are no longer given the freedom, time and resources that were accorded them
under the JDA. Indeed, a look at the history of the reform process reveals that
the YOA was an attempt to curtail the due process violations which arose under
the JDA ‘s parens patrie approach.
Unfortunately, the use of the vague expression “special needs” in the Dec-
laration of Principle does not make this interpretation clear. By failing to define
“special needs” with greater specificity, the legislators have left the work of
defining the concept entirely to the courts. The result, since the passage of the
YOA, has been a striking inconsistency in the application of the concept by the
courts.
In this section, we will demonstrate this inconsistency by showing that,
while a few courts have attempted to give “special needs” a unique meaning in
the dispositions context, most have simply caried over the old JDA assump-
tions by interpreting “special needs” to mean the need for rehabilitation or child
welfare. This, we believe, is a mistake. If rehabilitation is to be reintroduced
into Canadian juvenile justice, it should be done explicitly by the legislature and
not by way of interpretation in the courts. Until that is done, we believe the
courts should limit their interpretation of “special needs” to the need for special
protections. Thus when paragraph 3(1)(c) states that young offenders require
“guidance and assistance,” this should be interpreted to refer not to treatment
but, for example, to the need for special rules in relation to confessions.
1.
Sentencing
Without question, the determination of the appropriate disposition for a
young person convicted of a criminal offence is a difficult and controversial
exercise. No discrete test is provided in sections 20-26 of the YOA to guide the
judge in determining the appropriate disposition.’ Rather, the sentencing judge
175Although factors similar to those used in sentencing adults may be taken into account in sen-
tencing young offenders, the Criminal Code provides more guidance to the sentencing judge in that
it sets out minimum and maximum penalties for each offence. As well, the courts have confirmed
that case law has a lesser role in the young offenders system than it does under the Criminal Code.
See e.g. R. v. SA.B. (1990), 96 N.S.R (2d) 374 at 375; 56 C.C.C. (3d) 317, 253 A.P.R. 374
(S.C.(A.D.)) [cited to N.S.R.]. Generally, young offender sentencing is a more individualized proc-
ess than adult sentencing. This is confi-med in the following statement about inconsistency in
young offender dispositions: “Perhaps inconsistency is an inappropriate word. It is simply that for
a young person, you cannot look at the offence, then look at previous dispositions and graph the
two in a way some people would say ideally, others would say not ideally, you might be able to
19931
NOTE
must balance a series of factors related to the young person’s age, character, pre-
vious record and the offence committed, in a manner that supports the aims of
the juvenile justice system. This, of course, requires the court to refer to the
Declaration of Principle.
While there is a need for considerable judicial discretion in the young
offender sentencing context, the broad language of the YOA creates virtually
unstructured discretion and has led to widespread disparity in young offender
dispositions, both at the level of the sentences ordered and of the principles
being applied to -determine dispositions. Moreover, the concept of “special
needs” has not served as a useful tool for distinguishing young offender and
adult sentences in any meaningful way. The failure of the legislature to define
the types of special needs that are relevant to disposition has therefore blurred
the boundary between the principles applicable to adult sentencing, young
offender dispositions and sentencing under the former JDA.
To date, relatively few courts have made explicit reference to “special
needs” in determining dispositions. In R. v. A.D.M., the Manitoba Court of
Appeal used the principle to set aside a custodial disposition and to amend a
young offender’s probation order to allow her to remain in the welfare facility
where she was residing prior to her sentencing. 76 In R. v. R.I., “special needs”
was broadly applied as an overall justification for a flexible approach to young
offender sentencing according to which the principle of proportionality of sen-
tence is not as strictly applied to young offenders as to adults.”
The link between these interpretations of “special needs” is not clear
because the courts in each case made little attempt to identify the types of needs
which were being addressed. Nonetheless, it is possible to identify certain spe-
cific “needs” which the courts, have addressed in determining dispositions. In
particular, child welfare concerns and rehabilitation have been the focus of a
significant number of sentencing decisions.
Welfare needs have emerged as a theme in several cases where the courts
have held that custody may be ordered as a means of removing a young person
from a bad home environment. For example, in R. v. JJ.M., the Manitoba Court
of Appeal ordered a two-year disposition in open custody for a young person
convicted of three counts of break, enter and theft.17 The choice of disposition
graph sentences for adults” (R. v. C.H.O. (1987), 82 A.R. 302, [1987] W.D.F.L. 1215 (Alta. Prov.
Ct., Yth. Div.)).
176[1985] W.D.F.L. 130 (Man. C.A.).
177(1985), 44 C.R. (3d). 168 (Ont. C.A.). With respect to the principle of proportionality, the
Court wrote as follows at 175:
The close correlation which is generally looked to as appropriate in the case of an adult
offender between the seriousness of the offence and the length of the sentence imposed
for it may or may not be equally as appropriate in the case of a young offender, where
the task of arriving at the “right” disposition may be a considerably more difficult and
complex one, given the special needs of young persons and the kind of guidance and
assistance they may require. Any uncritical application of the principle [of proportion-
ality] to young offenders could thus run counter to the larger objectives of the new leg-
islation.
178(1991), 75 Man. R. (2d) 296, 6 W.A.C. 296 (C.A.) [cited to Man. R.], aff’d [1993] 2 S.C.R.
421, 20 C.R. (4th) 295.
REVUE DE DROIT DE McGILL
[Vol. 38
was partly motivated by the Court’s desire to place the youth outside his dys-
functional home environment. Huband J.A., writing for the majority of the
Court, stated that “[w]hat might be too long in terms of a jail sentence for an
adult may be entirely fit in terms of open custody for a young offender.”‘ 79 Sim-
ilarly, in R. v. R.I., the Ontario Court of Appeal suggested that it may in some
instances be appropriate to give a longer custodial disposition to a young
offender who comes from an unhappy home environment. 80 Although many
courts have rejected the use of custody as a surrogate for youth protection, 8’ the
“child welfare” approach .to custody has been followed in several prominent
appellate cases. 82
In a second series of cases, the courts have tailored dispositions to meet the
rehabilitative needs of young offenders. For example, in Protection de la jeu-
220,83 the Quebec Youth Court chose a disposition in open custody
nesse –
over a “short, sharp shock”-style disposition”s in secure custody for a young
person convicted of theft, on the basis that the rehabilitative needs of the youth
1791bid. at 297. Helper J.A., dissenting, recognized that the youth needed to be placed perma-
nently outside his home given his dysfunctional home environment but asserted that the criminal
justice system was not the proper forum for achieving such a goal: “It is inappropriate to use a cus-
todial order in the criminal justice system to provide a secure environment for a child. Although
a two year open custody disposition might be in the best interests of this youth, it was not a fit
sentence for such a young [15-year-old] accused with only one previous court appearance …”
(ibid.).
‘t0Supra note 177. In the later decision of R. v. Michael B. (1988), 22 O.A.C. 100, 36 C.C.C.
(3d) 573 (C.A.), the Ontario Court of Appeal presented the contrary view of the goals of custody,
stating that custodial dispositions should not be used as a substitute for child welfare. The fact that
the same court came to opposite conclusions on the same point within a 3-year period provides an
effective illustration of the prbblem of interpretative disparity under the YOA.
’81See e.g. R. v. J.M. (1986), 44 Man. R. (2d) 25 (C.A.), where the court reduced a custodial
disposition to time served and probation for a young offender who had been convicted of break,
enter and theft, assault causing bodily harm and several other offences, on the basis that custody
should not be ordered for child welfare purposes. The young person was then turned over to the
child welfare authorities, who were in a better position to deal with the youth than the youth pro-
tection system. See also R. v. G.K. (1985), 39 Alta. L.R. (2d) 355, 21 C.C.C. (3d) 558, 63 A.R.
379 (C.A.), R. v. Michael B., ibid. and Protection de lajeunesse-243 (17 December 1986), Mon-
treal 500-03-002201-856, J.E. 87-197 (C.A.), where the use of the custodial dispositions as a sub-
stitute for child welfare was rejected.
’82See e.g. R. v. AJ.L. (1986), 43 Man. R. (2d) 250 (C.A.), where the Manitoba Court of Appeal
considered the fact that a young person convicted of break, enter and theft came from an unhappy
home environment as one of several factors justifying the imposition of a disposition in secure cus-
tody. The Court also took into account the youth’s need for individual attention and the refusal of
child welfare authorities to intervene until after he had been sentenced in criminal court in making
its determination.
Similarly, in R. v. B.T. (1987), 58 Sask. R. 293 (C.A.), the Saskatchewan Court of Appeal took
into account the unhappy family situation and alcohol problems of a 16-year-old native youth con-
victed of sexual assault in its decision to increase his sentence to 10 months in secure custody and
12 months of probation. See furtherR. v. K.L.B. (1985), 67 N.S.R. (2d) 232 (C.A.),where the Nova
Scotia Court of Appeal considered the fact that a young person convicted of theft was “unmanage-
able” at home and at school, as a factor which weighed in favour of imposing “some form” of cus-
tody.
183(8 May 1986), Montreal 500-03-000265-861, I.E. 86-951 (Youth Ct.).
184″Short, sharp shock” refers to a severe, short penalty which aims at providing a maximum
level of individual deterrence.
1993]
NOTE
would be better served by a longer custodial term. In choosing this disposition,
Demers J. drew the following analogy between “special needs” in young
offender cases and the doctrine of the “best interests of the child” in youth pro-
tection cases: “De l’avis de la soussign~e, les besoins du jeune dont i est ques-
tion h la loi sur les jeunes contrevenants ont certainement autant d’importance
que le bien de l’enfant et son int6r& en vertu de la Loi sur la protection de la
jeunesse.”” s This statement calls to mind the system of juvenile justice which
prevailed under the JDA. There, as in child protection cases, the court played
a parens patrice role, in that all judicial decisions were made in the “best inter-
ests” of the child.”3 6 The role of the sentencing judge was to assess the rehabil-
itative and welfare needs of the juvenile and to order a sentence to meet these
needs. Thus, the analogy drawn between “special needs” and “best interests” in
Protection de la jeunesse – 220 links the concept of “special needs” to a reha-
bilitative or welfare model of sentencing.” 7
Other courts have given rehabilitation a prominent role in determining sen-
tence without explicitly mentioning “special needs.” For example, in F.I.G.C. v.
R., the Nova Scotia Court of Appeal emphasized that the courts must not lose
sight of the “important elements of reformation and rehabilitation when there is
the realistic possibility of success.” ‘ Similarly, in R. v. K.SJ.,8 9 the Nova Sco-
tia Court of Appeal held that young offenders must be treated differently from
adults in the sense that, while youth are to be held accountable for their actions,
rehabilitation is the “primary consideration.”‘ 90 In the most striking case on this
point, the British Columbia Court of Appeal held that rehabilitation should be
the paramount sentencing criterion under the YOA.”‘ This view was parallelled
185Supra note 183 at 9.
186See supra notes 23-26 and accompanying text for a discussion of the parens patriae philos-
ophy of the JDA.
187See P. Gabor, I. Greene & P. McCormick, “The Young Offenders Act: The Alberta Youth
Court Experience in the First Year” (1986) 5 Can. J. Fam. L. 301 at 307-08, for the view that the
use of rehabilitative and welfare goals under the YOA is the direct result of judges applying JDA
principles to the YOA. The authors of this study interviewed 13 ofthe 15 full-time members of the
Alberta Youth Court and asked questions relating to various aspects of the YOA. Over half of the
judges interviewed indicated that they had not changed their attitude toward sentencing with the
passage of the YOA.
’88(1988), 81 N.S.R. (2d) 82 at 83, 203 A.P.R. 82 (S.C.(A.D.)).
89(1987), 79 N.S.R. (2d) 27 at 28, 196 A.P.R. 27 (S.C.(A.D.)).
19See also R. v. M.J.CH. (1990), 86 Nfld. & P.E.I.R. 199 at 202 (Nfld. S.C.(T.D.)), where it
was held that the appropriate disposition should strike a balance between rehabilitation and the pro-
tection of society, and R. v. SA.B., supra note 175 at 376, where it was held that the principles
of the accountability of the young person, the protection of society and the needs of the young per-
son are all important, and that “[a]ny one of these may become paramount in a given situation,
although all are relevant.”
19 1R. v. SA.T. (1991), 2 B.C.A.C. 161, 5 W.A.C. 161 (B.C.C.A.) [cited to B.C.A.C.]. In this case,
the B.C. Court of Appeal reduced a sentence of 1 year in custody and 2 years of probation to time
served for a young offender who had been convicted on 2 counts of sexual assault against his step-
sister. Because the youth was 19 years old at the time of his conviction, the trial judge ordered that
the sentence be served in adult prison pursuant to s. 24.5 of the YOA. He recommended a particular
facility which aimed at rehabilitating young adults. In fact, the youth was sent to an ordinary jail
where he was placed in protective custody and confined to a small room for 21 hours a day. In
reducing the sentence ordered at trial, Lambert J.A. made the following statement about the goals
of the YOA at 10-11:
McGILL LAW JOURNAL
[Vol. 38
in the recent decision of the Supreme Court of Canada in R. v. JJ.M., where
Cory J., writing for the Court, expressed the view that reform and rehabilitation
must be the “ultimate aim of all dispositions.”’92 Additionally, in the transfer
context, in R. v. S.W.S., 93 the Manitoba Provincial Court specifically defined
“special needs” as a young person’s prospects for rehabilitation, and refused to
transfer a young person to adult court on the basis that these special needs could
be better dealt with in the youth system.
Despite the fact that many of the decisions which tailor sentences to meet
child welfare and rehabilitative goals make no explicit reference to paragraph
3(l)(c) of the YOA, the legislative concept of “special needs” is one of the
implicit textual bases from which these goals are read into the Act. Protection
de la jeunesse – 220 is simply an explicit illustration of the implicit connection
that courts have drawn between special needs, rehabilitation and child welfare
goals. 4 Further evidence of the link between “special needs” and rehabilitative
or welfare goals is found in the most recent government proposals to amend the
YOA, 95 where paragraph 3(1)(c) is redrafted to read as follows:
(c) young persons require supervision, discipline and control, but because of their
state of dependency and level of maturity, require guidance and assistance in
addressing their developmental needs and they may also have special needs which
may require assessment and treatment. [emphasis added] 9 6
Treatment, which is seen as synonymous to rehabilitation, is conceived of as
part and parcel of the concept of “special needs” in this provision. The proposed
amendment may be seen as a codification of the jurisprudence equating “special
needs” with treatment goals.
Is this equation justified under the YOA? As we have discussed, the JDA
was structured around the idea that juvenile delinquents were not personally
responsible for their wrongful behaviour, but were rather blameless “victims of
circumstance” who had become delinquent in response to poor parenting or eco-
nomic and social disadvantages and thus explicitly supported a rehabilitative
approach to sentencing. 97 The correlative to the absence of-notions of respon-
It may well be that if this young man had been sentenced to a period of incarceration
that had in fact been able to have been served at Stave Lake, then that may well have
been a very good sentence for the purposes of his rehabilitation. And, of course, reha-
bilitation is the paramount sentencing criterion under the Young Offenders Act. There
is no doubt that the sentence that is actually being served in this case, in the way it is
being served, is inconsistent with the principles that should govern sentencing under
the YOA.
See also R. v. K.SJ., supra note 189 and R. v. F. (1985), 11 O.A.C. 302, for the view that the pri-
mary goal of the YOA is rehabilitation.
192R. v. JJ.M., [1993] 2 S.C.R. 421, 20 C.R. (4th) 295 at 299 [hereinafter JJ.M. cited to C.R.].
For a discussion of this case, see infra notes 344-48 and accompanying text.
193(9 January 1986), Y.O.S. 86-001 (Man. Prov. Ct., Fain. Div.).
194Supra notes 183-85 and accompanying text.
195Canada, Department of Justice, Proposed Changes to the Young Offenders Act – Phase H
(Ottawa, unpublished, 14 August 1992), Part A, s. 3(l)(c) [hereinafter Proposals].
196Proposals, ibid., Part A, s. 3(l)(c).
197See supra notes 21-29 and accompanying text for a discussion of the philosophical orientation
of the JDA.
1993]
T
NOTE
sibility of youth under the JDA was the assumption that young persons lacked
the capacity to enjoy full civil rights. In the sentencing context, the JDA pro-
vided for indeterminate periods of custody, and the courts, accordingly, had lit-
tle concern for proportionality in sentencing or for standardized sentencing
across jurisdictions.1 98
In contrast, the YOA was not designed to support rehabilitative or child
welfare goals. The accountability of youth is one of the cardinal principles of
the YOA,199 and, as a corollary, youths are guaranteed full enjoyment of the
rights guaranteed in paragraph 3(1)(e) of the Act.2 As well, the YOA stipulates
that all sentences must be determinate 0 1 and that treatment under the Act cannot
be ordered without the consent of the young person.2″ Moreover, the judge sen
tencing a young offender has limited control over the provision of treatment, as
he or she does not have the power to designate the institution in which the
young persons will be placed. 3 Thus, rehabilitative and welfare goals are more
problematic to achieve under the current young offenders system, and therefore
constitute ill-suited sentencing goals under the Act.2′
Several authors have taken this view. For example, Manfredi has argued
that the YOA has replaced rehabilitation with individual responsibility and sys-
tem accountability as the dominant objectives of juvenile justice policy.’ 5 With
‘9 Leschied, Jaffe & Willis, eds., supra note 3 at 159.
199 YOA, supra note 1, s. 3(1)(a).
2paragraph 3(1)(e) reads as follows:
3(1)(e) young persons have rights and freedoms in their own right, including those
stated in the Canadian Charter of Rights andFreedoms or in the Canadian Bill
of Rights, and in particular a right to be heard in the course of, and to partic-
ipate in, the processes that lead to decisions that affect them, and young per-
sons should have special guarantees of their rights and freedoms.
20 1YOA, s. 20(3), (4). These sections set out the maximum length for young offender disposi-
tions. The maximum sentence is 5 years less a day for first or second degree murder, and 3 years
for all other offences.
202yOA, ss. 20(1)(i), 22(1).
203This function is reserved to the provincial director in s. 24.2 of the YOA. The provincial direc-
tor may rely upon a judge’s comments to inform his or her choice of institution.
24See supra notes 133-42 and accompanying text for a discussion of the general effectiveness
of rehabilitation as a goal for young offender sentencing. A recent study which shares Martihson’s
thesis that “nothing works” is that of S.P. Lab & J.T. Whitehead, “From ‘Nothing’ Works to ‘The
Appropriate Works’: The Latest Stop on the Search for the Secular Grail” (1990) 28:3 Criminology
405.20 5Manfredi, supra note 171 at 58. See also A. Young, “Appellate Court Sentencing Principles
for Young Offenders” in Beaulieu, ed., supra note 171, 67 at 93-94, for the view that rehabilitation
has been relegated to a secondary status in the young offenders system. A similar opinion is
expressed in A. Leschied & P. Gendreau, “The Declining Role of Rehabilitation in Canadian Juve-
nile Justice: Implications of Underlying Theory in the Young Offenders Act” (1986) 28 Can. J.
Crim. 315.
For the view that rehabilitative goals may validly be addressed under the YOA, see M.-A. Kir-
van, “Commentary on the Implications of the Young Offenders Act for Treatment and Rehabilita-
tion” (1987) 11 Prov. Judges J. 18 at 21. See also Tr6panier, supra note 171 at 57, for the view
that rehabilitative needs may be addressed under the Act. See further Leschied et al., “Treatment
Issues and Young Offenders: An Empirically Derived Vision of Juvenile Justice Policy” in A. Cor-
rado et al., eds., Juvenile Justice in Canada: A Theoretical and Analytical Assessment (Toronto:
REVUE DE DROIT DE McGILL
[Vol. 38
respect to welfare needs, Tr6panier has argued that a child’s need for protective
measures is no longer an acceptable goal for justifying interventions that cannot
be justified under the other principles of the Act.2′ This is reinforced by the fact
that the YOA was conceived by many reformers in the 1960s and 1970s as a
move away from the rehabilitative rhodel2l and the informal system of justice
under the JDA.205
Accordingly, we must question why so many courts have allowed rehabil-
itation and child welfare goals to be determinative in their choice of disposi-
tions. These goals are clearly outside the scope of the YOA viewed historically
and are not supported by the structure of the current Act. In this respect, there
is also reason to criticize the most recent government Proposals to amend the
YOA. Paragraph 3(l)(c) of the Proposals, reproduced above, 9 explicitly rein-
states the goal of rehabilitation in Canadian juvenile justice by linking “special
needs” with treatment. Paragraph 3(1)(c.1) further links rehabilitation and spe-
cial needs with the protection of society, as follows:
s. 3(1)(c.1) the long term protection of society is best served by the rehabilitation
of young offenders, and accordingly, young persons should bear responsibility for
their contraventions in ways which will most effectively respond to the needs and
circumstances relevant to their offending behaviour.
The Proposals do little to clarify the use of language and concepts under
the Act. Paragraph 3(l)(c.1) confuses the notion of special needs by linking it
with the notions of accountability, rehabilitation and the protection of society.
What does it mean to say that young persons should bear responsibility in a
manner that responds to the needs and circumstances relevant to their offending
behaviour? How do these needs and circumstances relate to the possibility of
rehabilitation? Paragraph 3(l)(c) further complicates matters by drawing a dis-
tinction between special needs and developmental needs, without defining
either of these two concepts. Thus, the Proposals compound the problems of
interpretation under the YOA, and arguably, leave judges with even less direc-
tion than they are given under the present Act.
It is therefore clear that interpreting “special needs” in the sentencing con-,
text has created a number of problems. The vague language of the principle
itself gives little direction to the sentencing judge, with the result that judicial
interpretation of “special needs” has been inconsistent. Moreover, “special
needs” has become the implicit basis for judicial reliance on principles which
are completely incompatible with the bistory and the structure of the YOA. In
short, judges have been hesitant to renounce the philosophy of juvenile justice
which dominated for most of this century in favour of a model premised on the
Butterworths, 1992) 347 at 352, for the view that treatment of young offenders can be effective,
but that the YOA frustrates this possibility with a “justice model” of sentencing.
21Trdpanier, ibid. at 34.
207See supra notes 171-73 and accompanying text for a discussion of the move away from the
rehabilitative philosophy of sentencing.
20 Manfredi, supra note 171 at 128. See also Tr6panier, supra note 171 at 28-31.
209See text accompanying note 196.
21 Proposals, supra note 195, s. 3(l)(c.1).
19931
NOTE
responsibility and rights of youth. Thus, apart from the inappropriate use of
rehabilitative and welfare goals, the courts have failed to develop sentencing
principles which promote a unique identity for juvenile justice under the YOA.
As Young points out, although courts have alluded to the concept of “special
needs” as a distinguishing feature of the young offenders system, there is little
understanding of how this concept can be translated into a distinct penal philos-
ophy.211
In our opinion, it should be made clear lby the legislator that “special
needs” does not refer to rehabilitation. While some may argue that a rehabili-
tative approach is what prevents the juvenile justice system from becoming a
miniature version of the adult Criminal Code,2 2 we believe that this distinction
can be preserved without reference to the concepts of rehabilitation and child
welfare. The special needs of young persons stem from the fact that they are at
a different stage of intellectual, emotional and social development than adults.2″3
While the “special needs” of youth were addressed under the JDA largely by
asking what help or treatment the state could provide, we believe that “special,
needs” under the YOA should be defined largely in terms of what special pro-
tections the state should provide to wayward youth as a result of their lesser
development. The lesser moral and cognitive development of youths makes
them particularly vulnerable in an adult world. Accordingly, special protections
must be accorded to young offenders.
These special protections can be found throughout the YOA. The limits on
the publication of information regarding young offender cases,214 the concept of
parental responsibility, the idea that children should not be removed from their
families unless absolutely necessary,215 and the concept of diminished responsi-
bility are all particular instances of a more generalized understanding that young
persons have special needs. Similarly, in the sentencing context, the custody
review process,21 6 the variety of available dispositions including the creation of
“‘open” custody,217 and the shorter custodial terms, all reflect the idea that young
persons are different than adults and should be treated as such.218 The meaning
of “special needs” is made much clearer through these concrete examples than
through the blanket statement that “young persons have special needs and
require guidance and assistance.”
In this respect, we believe that any interpretation of the expression “special
needs” should be centred around the question of whether and to what extent the
diminished moral and cognitive capacity of youth should necessitate special
protections. This type of analysis cannot be made in blanket form in a Decla-
21 Young, supra note 205 at 104.
212Supra notes 116-19 and accompanying text.
21ISee text accompanying supra note 69 et seq. and Dalby, supra note 51.
2 14S. 38 of the YOA stipulates that the names of young offenders may not be published. S. 39
215yoA, s. 3(1)(h).
2 16 YOA, ss. 28-43.
2 17yOA, s. 24.1.
218See Kirvan, supra note 205 at 21, for the view that these various provisions of the YOA give
provides for the exclusion of the media from young offender hearings.
specific recognition to the concept of special needs.
McGILL LAW JOURNAL
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ration of Principle. Rather, it requires an analysis of the particular protection
being considered and the needs of youth that might necessitate that protection.
An example of this type of analysis can be found in relation to confessions.
2.
Confessions
The notion of voluntariness has been the traditional cornerstone of the
Canadian law of confessions as it pertains to adults. This concept developed out
of the recognition that the dynamics inherent in the process of police interroga-
tion can cause individuals to make unreliable or untrue statements to authority
figures conducting the interrogation. When statements are made to “persons in
authority,” only those which are “voluntary” will be seen to be reliable and will
therefore be admitted into evidence. On the other hand, statements which are
“involuntary,” in the sense that they have been made “out of fear of prejudice
or hope of advantage exercised or held out by a person in authority,” will be
inadmissible.” 9 Since 1982, statements may also be excluded pursuant to sub-
section 24(2) of the Canadian Charter of Rights and Freedoms”0 in circumstan-
ces where there has been a breach of a Charter right and the administration of
justice would be brought into disrepute.
Section 56 of the YOA creates a special regime governing the admissibility
It is based on
of confessions made by young people to persons in authority.”
2191bralim v. R., [1914] A.C. 599 at 609 (P.C.).
220Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
221Section 56 reads as follows:
c. 11 [hereinafter Charter].
56.(1) Subject to this section, the law relating to the admissibility of statements made
by persons accused of committing offences applies in respect of young persons.
(2) No oral or written statement given by a young person to a peace officer or other
person who is, in law, a person in authority is admissible against the young per-
son unless
(a) the statement was voluntary;
(b) the person to whom the statement was given has, before the statement was
made, clearly explained to the young person, in language appropriate to his
age and understanding, that
(i) the young person is under no obligation to give a statement,
(ii) any statement given by him may be used as evidence in proceedings
(iii) the young person has the right to consult another person in accordance
against him,
with paragraph (c), and
(iv) any statement made by the young person is required to be made in the
presence of the person consulted, unless the young person desires oth-
erwise;
(c) the young person has, before the statement was made, been given a reason-
able opportunity to consult with counsel or a parent, or in the absence of
a parent, an adult relative, or in the absence of a parent and an adult relative,
any other appropriate adult chosen by the young person; and
(d) where the young person consults any person pursuant to paragraph (c), the
young person has been given a reasonable opportunity to make the state-
ment in the presence of that person.
(3) The requirements set out in paragraphs (2)(b), (c) and (d) do not apply in respect
to oral statements where they are made spontaneously by the young person to
19931
9 NOTE
the assumption that children are particularly suggestible, generally unaware of
their rights and therefore require special protections in situations where they
tend to make self-incriminating statements. Remarks to this effect can be found
throughout the jurisprudence and literature dealing with the YOA:
By its enactment of s. 56, Parliament has recognized the problems and difficulties
that beset young people when confronted with authority … A young person is usu-
ally far more easily impressed and influenced by authoritarian figures. No matter
what the bravado and braggadocio that young people may display, it is unlikely
that they will appreciate their legal rights in a general sense or the consequences
of oral statements made to persons in authority; certainly they would not appreci-
ate the nature of their rights to the same extent as would most adults … A young
person may be more inclined to make a statement, even though it is false, in order
to please an authoritarian figure. It was no doubt in recognition of the additional
pressures and problems faced by young people that led Parliament to enact this
code of procedure. 2
=
Section 56 thus addresses the “special needs” of young persons by setting out
requirements with respect to the admissibility of their confessions which surpass
those available to adults. As such, it is one area of the YOA where “special
needs” is indeed equated to special protections.
As a general rule, it is during the course of police interrogation that indi-
viduals make confessions. The salient features of this process are well docu-
mented in the literature of social psychology. Writers in the area agree that the
environment in which the interrogation takes place, the personal characteristics
of the interrogator, as well as the tactics adopted by the interrogator combine to
make police interrogation an “inherently coercive” institution.2″ Studies show-
ing that humans have a tendency to obey authority even where obedience is irra-
tional and against one’s better judgment are also relevant in this context. 4 They
suggest that even those suspects who understand their rights to silence or to
counsel, and who realize that these rights should be exercised, may find them-
selves responding to questions put to them by the police. The same studies doc-
ument a frequent inability of individuals to express themselves in the face of
authority figures. As one author has remarked: “[the] inability to find appropri-
a peace officer or other person in authority before that person has had a reason-
able opportunity to comply with those requirements.
(4) A young person may waive his rights under paragraph (2)(c) or (d) but any such
waiver shall be made in writing and shall contain a statement signed by the
young person that he has been apprised of the right that he is waiving.
(5) A youth court judge may rule inadmissible in any proceedings under this Act
a statement given by the young person in respect of whom the proceedings are
taken if the young person satisfies the judge that the statement was given under
duress imposed by any person who is not, in law, a person in authority.
(6) For the purpose of this section, an adult consulted pursuant to paragraph
56(2)(c) shall, in the absence of evidence to the contrary, be deemed not to be
a person in authority.
=R. v. J.T.J., [1990] 2 S.C.R. 755 at 766, 79 C.R. (3d) 219.
2
23See e.g. E.D. Driver, “Confessions and the Social Psychology of Coercion” (1968) 82 Harv.
L. Rev. 42; C. Manfredi, “Human Dignity and the Psychology of Interrogation in Miranda v. Ari-
zona” (1986) 1 Can. J. Law & Soc. 109.
224For a good summary of these studies see E.W. Shoben, “The Interrogated Juvenile: Caveat
Confessor?” (1973) 24 Hast. L.J. 413 at 418ff.
REVUE DE DROIT DE McGILL
-[Vol. 38
ate verbal expression for terminating a stressful encounter may similarly hinder
a suspect in the exercise of his right to terminate an interrogation.”‘ These
findings raise doubts as to whether confessions can ever be described as truly
voluntary.226
The inherent coerciveness of interrogation is exacerbated when the subject
of the interrogation is a child. According to Driver, “low status persons –
those
who have never enjoyed a secure or rewarding social position –
are likely to
be the most vulnerable of all to [police] indoctrination.” 7 While individuals of
any age may fit this description, the “typical inexperience, passivity, and low
social status of the young enhances their susceptibility to coercion as a
group.”‘228 Developmental psychologists have defined personality traits of young
people which are similarly revealing. They describe adolescents as possessing
little foresight, with the ability to understand only those things that are available
to immediate perception.
In commenting on these studies one author has
remarked: “When these’characteristics of an adolescent are overlaid on a
juvenile-suspect-interrogator framework, it is readily discernible that the juve-
nile is not in control of his situation. All the juvenile knows is that he is caught
by the police, and he is not likely to be aware of the specific consequences of
his acts.”23 Young people are therefore particularly ill equipped to deal with the
rigours of police questioning. For example, one study which tested “predispo-
sition and coercion” was conducted amongst ninety fourteen-year-olds33′ Half
of the group consisted of delinquents, the other. half of non’delinquents. z 2 It was
found that although most of the subjects consciously knew that they had the.
right to remain silent,213 twenty-nine per cent of the delinquents, and forty-three
per cent of the non-delinquents still felt that they had to talk to the authorities
if arrested.2 4 The authors suggested that the adolescents’ knowledge of their
right to silence is subordinate to both their “mental states at the time of arrest”
as well as their “predisposition to talk.” 5
22 lbid. at 419.
2261t is interesting to note that interrogation manuals prepared by police scientists are actually
designed to capitalize on the psychological factors at work in the process of police interrogation.
By manipulating these factors, police can subtly “coerce” suspects into talking. See especially F.E.
Inbau, J.E. Reid & J.P. Buckley, Criminal Interrogations and Confessions, 3d ed. (Baltimore: Wil-
liams & Wilkins, 1986).
2 27Driver, supra note 223 at 48.
228Shoben, supra note 224 at 422.
229For a good summary of these writings see S.A. Burr, “Now My Son, You Are a Man: The
Judicial Response to Uncounselled Waivers of Miranda Rights by Juveniles in Pennsylvania”
(1987) 92 Dick. L. Rev. 153.
230Ibid. at 174.
23 1A.B. Ferguson & A.C. Douglas, “A Study of Juvenile Waiver” (1970) 7 San Diego L. Rev.
39.232The “delinquent” group was made up of children being held at various San Diego County
detention facilities. The “non-delinquents” consisted of students attending local Junior High
Schools (ibid.).
2 33Delinquents scored a .96 index of understanding, while non-delinquents scored a .82 index
of understanding of the right to remain silent (ibid. at 48).
2314 bid. at 51.
2351bid.
19931
NOTE
Studies comparing the confession rates of young people to those of adults
reinforce the literature describing children to be particularly vulnerable in the
face of police questioning. 6 In his recent book entitled Police Interrogation, for
example, Woods examined the data tending to show a relationship between age
and the confession rate and tested it for statistical significance and associa-
tion.37 Woods’ calculations confirmed that there is indeed a statistically signif-
icant relationship between age and the incidence of confessions. Woods con-
cluded that the existing research clearly supports thehypothesis that younger
suspects do confess more readily than older ones.
The tendency of adolescents to confess at a higher rate than adults is rooted
in more than just the particular suggestibility of children. An analysis of the role
played by the police in processing complaints made against young people pro-
vides another explanation for this trend. 3 We know that only some of the chil-
dren who are apprehended by the police will ever find themselves in youth
court. In fact, the police act as an “informal screening body,” selecting those
children who will be formally charged, and those who will be dealt with outside
the system. 9 Between 1986 and 1988, an average of 173,000 youths came into
contact with the police each year. Of these, sixty-five per cent were charged, and
thirty-five-per cent were dealt with unofficially.24 Studies have shown that in
deciding how to proceed in particular cases, police are strongly influenced by
a youth’s demeanour.241 A youth who is more contrite and cooperative is likely
to receive more favourable treatment by the police and he or she may, as a
236Although no major study of the interrogation process has been done in Canada, a great deal
of American and British research has been done on the topic. In a study by L.S. Leiken, “Police
Interrogation in Colorado: The Implementation of Miranda” (1970) 47 Denver L.J 1, 42.9% of
those aged under 25 were found to have made confessions to the police, while only 18.2% of those
over 25 confessed. The researcher concluded that older suspects “are better equipped psycholog-
ically to cope with the interrogation situation.” In a study conducted for the Royal Commission on
Criminal Procedure by J. Baldwin and M. McConville, Confessions in Crown Court Trials (Lon-
don: H.M.S.O., 1980), researchers examined 500 cases in both London and Birmingham. In each
city there was found to be a “strong association” between the age of the defendant and the tendency
to confess. The authors concluded that “the younger the defendant, the more likely he was to con-
fess” (ibid. at 34). The findings of another British study were to the same effect. See P. Softley,
Police Interrogation: An Observational Study in Four Police Stations (London: H.M.S.O., 1980).
Two additional projects examined the relationship between age and the confession rate. In one,
conducted by D.W. Neubauer, “Confessions in Prairie City: Some Causes and Effects” (1974) 65
J. Crim. Law & Criminology 103, it was found that while the confession rate does differ with age,
the differences are not statistically significant. The other, Comment, “Interrogations in New Haven:
The Impact of Miranda” (1967) 76 Yale L.J. 1519, found that there was no correlation between
successful interrogation and age.
237R.S.M. Woods, Police Interrogation (Toronto: Carswell, 1990).
23sSee J.L. Hagan, “The Labelling Perspective, the Delinquent, and the Police: A Review of the
Literature” (1972) 14 Can. J. Corr. 150 at 152, for elaboration on the fact that the police do not
generally seek out “delinquent” behavior, but act generally in response to citizen complaints about
such behavior.
239L.C. Wilson, Juvenile Courts in Canada (Toronto: Carswell, 1982) at 53.
24Canadian Centre for Justice Statistics: Youth Crime in Canada, 1986-1988, vol. 20, No. 12
(Ottawa, Statistics Canada, August 1990).
24 1 n fact, this is the second most crucial factor affecting the police officer’s decision, coming
after the child’s previous prison record. See Hagan, supra note 238 at 154.
McGILL LAW JOURNAL
[Vol. 38
result, escape the court system. 22 Not surprisingly, youths are aware that it is
in their best interests to cooperate with the police. Inone study, it was found that
seventy-four per cent of delinquents and ninety-three per cent of non-
delinquents felt that it would benefit them to “talk” when confronted by author-
ities.243 Young persons’ perceptions of the advantages of cooperation are thus a
factor in pressuring them to confess. What adolescents do not realize is that the
“cooperation” which seems necessary in order to achieve the immediate goal of
favourable treatment by the police can be used against them if they are never-
theless sent to court. They are incapable of recognizing that the behaviour which
seems to be required in the short term can yield detrimental consequences in the
long term.
While overt coercion is not generally a feature of modem interrogations,
psychological, sociological and legal literature makes it clear that these interro-
gations can be subtly coercive.2″ In dealing with adults, the test of voluntari-
ness, supplemented by the Charter protections, is seen to offset the coercive
nature of interrogation enough to ensure that only reliable statements are admit-
ted into evidence. Young people, however, have been shown to be more vulner-
able than adults to the coercive forces of the interrogation process. Indeed,
studies reveal the confession rate to be significatly related to age. Moreover,
police discretion as to whether to send a young person to court or deal with him
or her unofficially creates an additional pressure to be cooperative and confess.
Young people therefore do have special needs, and require special protections,
in the interrogation process. The remainder of our discussion of confessions will
therefore be devoted to assessing whether section 56 adequately addresses these
needs.
There are four main ways in which section 56 attempts to accommodate
the special needs of youth. They are the following:
(1) by providing young people with a reasonable opportunity to consult a “non-
counsel” adult, and with the right to make any statement in the presence of
that person;
(2) by providing the court with a discretion to exclude statements made by
young people to individuals who are not persons in authority when the
statement has been made under duress;
(3) by providing that only. the rights to consult and to make a statement in the
presence of the person consulted can be waived, and that this must be in
writing;
(4) by providing that compliance with the requirements of the section is man-
datory.
2421bid. at 153-54. See also J.E. Glen, “Interrogations of Children: When Are Their Admissions
Admissible?” (1968) 2 Fam. L.Q. 280 at 293; Shoben, supra note 224 at 422.
243Ferguson & Douglas, supra note 231 at 51-52. These statistics were compiled by asking the
subjects the following question: “If you were arrested, do you think it would be better for you to
talk?”
244But see S.J. Schulhofer, “Reconsidering Miranda” (1987) 54 U. Chi. L. Rev. 435 at note 26
for examples of police brutality throughout the 1970s and 1980s.
1993]
NOTE
a. The Role of Parents
Paragraph 56(2)(c) requires that a young person be given a reasonable
opportunity to consult “counsel or a parent, or in the absence of a parent, an
adult relative, or in the absence of a parent and an adult relative, any other
appropriate adult chosen by the young person.” 5 Under paragraph 56(2)(d) the
young person must be given a “reasonable opportunity to make the statement”
in the presence of the person consulted. Subparagraphs 56(2)(b)(iii) and (iv)
require that the young person be advised that he or she has these rights. These
provisions represent one of the most significant areas in which section 56 goes
beyond the common law of confessions and the Charter in that they provide a
young person with the right to consult and speak in the presence of a non-
counsel adult.
Prior to the YOA, the courts recognized in a series of cases that a parent’s
presence could be beneficial to young people in the interrogation context.246 In
R. v. Jacques, the court put forward a set of guidelines to be applied in deter-
mining whether to admit statements made by children.247 The first two were as
follows:
1. Require that a relative, preferably of the same sex as the child to be questioned,
shall accompany the child to the place of interrogation;
2. Give the child, at the place or room of interrogation, in the presence of the rel-
ative who accompanies him, the choice of deciding whether he wishes his rel-
ative to stay in the room during the questioning or not;248
These criteria were reiterated in many other cases including R. v. A.249 and R.
v. Yensen.2’0
Under the JDA, there were no statutory guarahtees of a parent’s presence
at the interrogation stage and any statement made by a young person could be
admitted at the discretion of the judge, even if the child had not had the benefit
of a parent’s presence. Under section 56, this is clearly not the case. A young
person must be advised of the rights to consult a parent and to make a statement
in the presence of the parent, and must be given a reasonable opportunity to
exercise these rights. Failure by the police to respect these rights necessitates the
exclusion of any statement made. Section 56 has thus elevated the guidelines
which developed in case law under the !DA into mandatory rules of law.
The emphasis on the “consultation rights” of the child and the right to
“parental presence” during interrogation is based on two related, but distinct,
assumptions. The first is the idea of the parent as “protector” of the child. This
245For the purposes of our discussion, we will examine the right to consult a “non-counsel” adult
only with reference to parents. Much of what is said, however, will be relevant with respect to other
adults consulted by youth.
246In fact, it was also suggested that parents should be present during police questioning in
Report, supra note 35 at 112.
247R. v. Jacques (1958), 29 C.R. 249 (Que. Social Welfare Ct.).
24S1bid. at 268.
249(1975), 23 C.C.C. (2d) 537 at 540 (Alta. S.C.).
250[1961] O.R. 703 at 710, 36 C.R. 339, 29 D.L.R. (2d) 321 (H.C.).
REVUE DE DROIT DE McGILL
[Vol. 38
perception is intuitively satisfying in that it corresponds to the natural inclina-
tion of children to turn to their parents in times of need. The following statement
sets out a compelling justification for the safeguards in paragraphs 56(2)(c) and
(d): “For adults, removed from the protective ambit of parental guidance, the
desire for help naturally manifests in a request for an attorney. For minors, it
would seem that the desire for help naturally manifests in a request for par-
In their roles as protectors, it is hoped that parents will “decrease the
ents.”‘
powerlessness and fear” undoubtedly experienced by young people in their con-
tacts with the police. 2 It is assumed that a parent’s presence during interroga-
tion will generally “lessen the coercive atmosphere that arises when a juvenile
is alone with the police.” 3 In the case of R. v. D.M. & J.P., Abella J. said the
following about the role a parent could play:
In considering an issue such as the voluntariness of a statement, one must be scru-
pulously aware … that we are dealing with an individual who is legally and bio-
logically a child. This means, for example, that in the imbalance of power which
exists when an accused child is interviewed by the police … great care should be
taken to reduce the intimidating disparity of the scales by ensuring that the child
has an adult of his choice present if he wishes.5 4
Parents are thus seen as a source of comfort and support for their child.
While it may be true that parental consultation and presence will generally
be in the child’s best interest, this is certainly not always the case. In fact, both
of the assumptions underlying paragraphs 56(2)(c) and (d) oversimplify the
dynamics of parent-child relationships. There will certainly be situations when,
instead of acting to protect their child’s interests, parents will seek only to pro-
tect themselves. For example, they may induce their child to confess in order
to fulfil their hope for a speedy resolution of the situation. They may fear that
“a denial would lead to a prolonged trial,” a situation which would cause them
further embarrassment.” The authors of Canadian Children’s Law point out
that “[t]hose with experience in Juvenile Courts are undoubtedly familiar with
situations in which, say, a father, for reasons of his own (such as, avoiding the
loss of further time from work to attend a future trial, or using the court as an
instrument of discipline or of therapy), literally orders his child to confess or to
plead guilty.” 6 Indeed, the perception of “parent as protector” may frequently
be flawed, particularly where the parent and child do not share an identity of
interests.
Another serious problem with the assumption that parents will play a pos-
itive role in this context is that some parents have been found to encourage their
25People v. Burton, 99 Cal. Rptr. 1 (Sup. Ct. 1971).
252Comment, “Juvenile Confessions: Whether State Procedures Ensure Constitutionally Permis-
sible Confessions” (1976) 67 J. Crim. Law & Criminology 195 at 205.
2 3C.H. Saylor, “Interrogation of Juveniles: The Right to a Parent’s Presence” (1972-73) 77
Dick. L. Rev. 543 at 556.
214(1980), 58 C.C.C. (2d) 373 at 377 (Ont. Prov. Ct.).
255See e.g. Saylor, supra note 253 at 555-56; See also N. Bala, “Person in Authority” in Y.O.S.,
256N. Bala, H. Lilles & Judge G. Thomson, Canadian Children’s Law- Cases, Notes and Mate-
vol. I at C & A 72.
rials (Toronto: Butterworths, 1982) at 568.
1993]
NOTE
child to lie when questioned by the police. In an article entitled “Confessions
by Juveniles,” 27 Ontario Family Court Judge William H. Fox referred to the
case of Re R.M., which dealt with a thirteen-year-old boy charged with being
a juvenile delinquent in that he had allegedly murdered a seven-year-old girl.
Evidence presented at the voir dire showed that, when questioned in his
mother’s presence, the boy had not felt free to tell the truth. In fact, the boy
admitted that, following the discovery of the girl’s body, his mother had warned
him that if the police ever questioned him, he should lie about his whereabouts
on the day of the murder. It was only one week later, when the boy was alone
with the police, that the boy told the police that he wished to tell the truth. In
commenting on this case, Fox J. said the following:
One is driven to ask, in a case of this kind … if there was even a remote possibility
that the police would have discovered the whole truth in the presence of these par-
ents … Undoubtedly, there must be countless other cases like R.M. coming before
our courts from day to day in which there are strong reasons for believing that it
would not be for the good of the child or in the interest of the community that a
parent or other relative should be present while the child is being interrogated …2-8
When parents encourage their children to confess, or to lie, in order to maximize
their own needs, they have clearly not played the role of protectors envisaged
by paragraphs 56(2)(c) and (d).
The second assumption underlying paragraphs 56(2)(c) and (d) is that par-
ents are “better informed about legal rights and the possible consequences of
making a statement” than their children. 9 It is believed that parents “are better
able than children to deal effectively with police interrogators” and as such,
“young persons will overcome the disadvantages they face if they are provided
with access to adult advice.” 2″ In this sense, parents are seen as dispensers of
legal advice. Their role is to ensure that the legal rights of their children are pro-
tected.
Studies have been conducted to test the ability of parents to provide their
children with meaningful assistance in the interrogation and pre-interrogation
contexts. In one such study, juvenile court staff observed parent-child commu-
nication during 390 interrogations. 61 In 71.3 per cent of the cases, parents did
not tell their children anything about the right to silence, while in 81.3 per cent
nothing was said about obtaining a lawyer.62 In 66.2 per cent of the interroga-
tions parents did not offer their children any advice.263 In those situations where
advice was offered, 16.7 per cent were characterized by parents telling their
children to waive their right to remain silent, while in 11.3 per cent children
were instructed to waive the right to an attorney. A different study was con-
257W.H. Fox, “Confessions by Juveniles” (1963) 5 Crim. L.Q. 459 at 466.
281bid. at 468-69.
259Bala, supra note 255 at C & A 70.
260J. Hanson, “Youth Confessions: Section 56 of the Young Offenders Act” (1987) 6 Can. J.
261T. Grisso, Juveniles’ Waiver of Rights: Legal and Psychological Competency (New York: Ple-
262Ibid.
2631bid.
num Press, 1981), as cited in Burr, supra note 229 at 185.
Fam. L. 191 at 210.
McGILL LAW JOURNAL
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ducted amongst middle class parents attending a PTA meeting.2″ In response to
a hypothetical situation, one-third said that they would advise their children to
confess to any involvement in a crime. Three-quarters of the sample disagreed
with the premise that children should be allowed to withhold any information
from the police.”5 These results raise grave doubts about the ability of parents
to serve as competent legal advisors, especially when combined with the studies
showing that adults do not themselves adequately comprehend the rights which
exist in the interrogation context.2
Thus, these studies show that the formal right to consult a parent is not
always a sufficient protection for a young person in the interrogation context.
In applying section 56, some Canadian courts have demonstrated that they are
aware of this problem. In the case of R. v. Ashford and Edie, the Ontario High
Court considered the admissibility of a statement made by a boy after his arrest
in connection with a homicide. 7 The boy’s statement was made in his parents’
presence, after having spoken to his father in private. Despite this, the court
ruled that the statement was inadmissible:
Surely the purpose of having a parent present is so the child shall have guidance,
advice and protection. The officer said they were there to protect the rights of the
child. People in the conditions of Mr. and Mrs. Eddie are in no condition to do this.
The officers said throughout the continuation of the process, she didn’t say any-
thing but looked as if she was going to be sick. She was quiet, shaking and gag-
ging. As for the father’s condition while in the room, the father was crying and
shaking … While the parents were present, they are not of any assistance in the cir-
cumstances of the case and were not in a position to fulfil the duties required of
them.268
In the case of R. v. J.M.A,269 the Manitoba Court of Appeal also had occasion
to exclude a statement made by a young person in the presence of a represent-
264Grisso & Ring, “Parents’ Attitudes Toward Juveniles’ Rights in Interrogation” (1979) 6 Crim.
Just. & Behav. 211, as cited in Burr, supra note 229 at 185.
2651bid.
266See e.g. T. Grisso, “Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis”
(1980) 68 Calif. L. Rev. 1134 at 1152ff. In the American context, the possibility of requiring that
a youth and his or her parent be informed of the juveniles’ rights has been explored, presumably
in recognition of the fact that an ignorant parent will have a limited capacity to provide their child
with meaningful assistance. The “Interested Adult” or “McCutcheon” Rule is explained by Burr,
supra note 229 at 161, as follows: “no person under the age of eighteen years could waive his right
to remain silent and his right to the assistance of counsel without being provided an opportunity
to consult with an interested adult who was informed of the juvenile’s rights …”
See e.g. Commonwealth v. McCutcheon, 463 Pa. 90 (1975) and Lewis v. State, 12 Crim. L. 2136
(Ind. Sup. Ct. 1972). But see Burr, ibid. at 186, where he criticizes this approach as follows:
such a rule does not adequately safeguard a child’s rights and may even aggravate the
problem. The “interested adult” rule introduced an additional tier of litigable issues
requiring courts to determine whether the parent was informed of the juvenile’s rights,
whether the parent understood those rights and whether the parent had an adequate
opportunity to confer. This can only result in diverting judicial attention from an assess-
ment of the validity of the confession itself to a mechanical inquiry into the parents’
presence and understanding.
267(9 April 1985), Y.O.S. 56 141 (Ont. H.C.) [unreported].
26 SJbid. at 56 141-42.
269(1986), 46 Man. R. (2d) 309 (C.A.).
1993]
NOTE
ative of his legal guardian, a Child and Family Services Centre. In so doing, the
court said the following:
notwithstanding the presence of a representative of his legal guardian, it cannot be
said that the accused had a reasonable opportunity to consult with his guardian, as
the guardian’s representative was found to have misunderstood his role … ET]he
accused did not have the benefit of advice which “consultation” contemplates
270
These cases are helpful in showing that a young person’s right to consult a par-
ent is more than a mere formality.
The initiative of some courts in assessing the quality of consultation in
order to determine whether paragraphs 56(2)(c) and (d) have been satisfied is
to be commended. However, it may be optimistic to assume that all courts will
apply this enlightened analysis. We believe that the legislature must amend sec-
tion 56 in order to address the unsound assumptions about the role of parents
contained in this provision. We believe that in order adequately to address the
special needs of youth, a more developed role for counsel is required.
i.
The Right to Counsel
The need to emphasize and insist upon the young person’s right to consult
counsel is underscored by our discussion of the limitations associated with the
right to parental consultation and presence. In fact, it seems fair to say that only
lawyers truly possess the skills and training necessary to assist a young person
in the face of police questioning.
In order to exercise the personal right to counsel, young people must have
a reasonable understanding of the scope and implications of this right. It is not
enough simply to inform a young person that he or she has the right to consult
counsel, and then leave the decision as to whether to exercise this right exclu-
sively to them. Children have been shown to lack the “sophisticated reasoning
ability required to make this important decision.””27 Many young people do not
really understand the advocate role of defence counsel. Indeed, in one study, it
was revealed that only seven of the twenty-two children questioned believed
that defence counsel is “really on their side.” ’27 An American researcher has
concluded that “one-third of juveniles sixteen years of age and under who have
had few or no prior significant contacts with the police believe that defence
attorneys defend the interests of the innocent but not the guilty.” ‘273 Not only are
young persons ignorant regarding the function of counsel as defender, the
majority of them do not understand what this role implies at various stages of
the process.274 Exercising the right to counsel in a meaningful way involves
2701bid. at 310.
271J.C. Pearson, “Legal Representation Under the Young Offenders Act,” in Leschied, Jaffe &
Willis, eds., supra note 3, 114 at 117.
272K. Catton & P. Ericson, The Juvenile’s Perception of the Role of Defence Counsel in Juvenile
Court (Masters Thesis, Centre of Criminology, University of Toronto, 1972) [unpublished] at 21.
273See Pearson, supra note 271 at 117.
274See R. Abramovitch & M. Peterson-Bedali, “Young Persons Comprehension of Waivers and
Statements” (Presented at the Canadian Bar Association-Ontario Continuing Legal Education con-
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more than being able to assert the right; the youth must also appreciate why that
right exists. It is crucial that the youth understand the role of others in the crim-
inal process and the process itself. In a recent Canadian study of 113 young per-
sons from grades six, eight, ten and twelve, virtually none of the young persons
interviewed understood the full implications of a choice not to assert their right
to counsel.275 The fact that police questioning would occur after arrest was
known by only 57.7 per cent of the students. 6 There was no clear link made
by the youth between the right to have counsel and the importance of having
counsel present during police questioning. 77 In order for this special protection
to be of any value the youth must be provided with the opportunity to make a
fully informed decision as to whether or not to assert the right to counsel. This
involves more than knowing that they- have a right: they must know exactly
what this right is and why they have it.
In order to ensure that young people enjoy the full benefit of the rights
accorded to them under section 56, legal representation in the pre-interrogation
stage must be provided as a matter of course, without placing an obligation on
young people to request it. This means, at the very least, that before being ques-
tioned by the police, young people should have a conversation with counsel dur-
ing which counsel can explain their role to young people. Counsel can also use
‘this opportunity to ensure that young persons understand the significance and
extent of the legal rights available to them. Only after such a conversation can
children be equipped with the knowledge necessary to make an informed deci-
sion with respect to the exercise of their rights. At the same time, they can also
choose whether or not they wish to have counsel present during the actual inter-
rogation. Many authors and legal bodies in the United States have made sugges-
tions to this effect. For example, the Institute of Judicial Administration-
American Bar Association Joint Commission on Juvenile Justice Standards has
recommended that juveniles be accorded a mandatory, non-waivable right to
counsel in the pre-trial context.27 In doing so, they accepted the conclusion of the
President’s Commission on Law Enforcement and Administration of Justice that:
providing counsel only when the child is sophisticated enough to be aware of his
need and to ask for one or when he fails to waive his announced right is not
enough, as experience in numerous jurisdictions reveals. Counsel should be
appointed as a matter of course wherever coercive action is a possibility, without
requiring any affirmative choice by the child or parent.279
Grisso, who has conducted numerous studies testing the ability of children to
adequately comprehend and exercise their rights, has put forward this same sug-
gestion.280
ference entitled: The Young Offenders Act: Significant Trends for the 90’s, 14 November 1992) at
16.2751bid.
276Ibid. at 13.
2771bid.
278Institute of Judicial Administration-American Bar Association, Juvenile Justice Standards,
Standards Relating to Pretrial Court Proceedings (Cambridge: Ballinger Publishing, 1976) at 89ff.
279President’s Commission, supra note 44 at 34.
28’Grisso, supra note 266 at 1163.
1993]
NOTE
There are certainly many people who would argue against requiring a man-
datory “conversation” with counsel in the pre-interrogation context. It is feared
that this would preclude police from performing their role in law enforcement
“since any sensible lawyer would, from the outset, advise his client to say noth-
ing.”281 On the other hand, we believe that in providing counsel to all young
people at the earliest stage of the process, we would merely be ensuring that
“the ignorant and weaker” young people are placed in the same position as “the
better informed and more sophisticated subjects.”‘ 2 Indeed, as one writer has
pointed out, the present section 56 can be seen to foster inequality:
As a result of section 56, all children who receive appropriate advice, and who are
intelligent enough to follow that advice, will refrain from making any incrimina-
ting admissions. Such youths may, thereby, be shielded from criminal sanction
which for those youths, at least, will be a beneficial result. However, less intelli-
gent young persons, and those without access to good adult or legal advice (or,
worse yet, who receive bad adult advice) are deprived of any benefit as a result
of section 56.283
Given the need for consultation with counsel in the pre-interrogation stage,
an import~mt issue that must be raised with respect to paragraph 56(2)(c) is that
the language used in this section makes it unclear whether a young person who
has consulted with a “non-counsel adult” has exhausted his or her paragraph
56(2)(c) rights, or whether he or she is entitled to consult counsel as well. The
disjunctive wording of this provision seems to indicate that a young person can
consult with counsel or a non-counsel adult, but not both: “the young person
has, before the statement was made, been given a reasonable opportunity to con-
sult with counsel OR a parent …” At least one court has come to the same con-
clusion.28 4
Some writers have noted that despite the language of paragraph 56(2)(c),
the combined effect of paragraph 56(2)(c) and section 11 of the YOA, as well
as paragraph 10(b) of the Charter is to provide young people with the right to
consult both counsel and a parent. The relevant provisions read as follows:
11.(1) A young person has the right to retain and instruct counsel without delay,
and to exercise that right personally, at any stage of proceedings against the
young person and prior to and during any consideration of whether, instead
of commencing or continuing judicial proceedings against the young per-
son under this Act, to use alternative measures to deal with the young per-
son.
(2) Every young person who is arrested or detained shall, forthwith on his
arrest or detention, be advised by the arresting officer or the officer in
charge, as the case may be, of his right to be represented by counsel and
shall be given an opportunity to obtain counsel.
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay; and …
281Soffley, supra note 236 at 27.
282 bid. at 28.
283Hanson, supra note 260 at 210. See also N. Dorsen & D.A. Rezneek, “In Re Gault and The
284R. v. J.B. (1990), 109 N.B.R. (2d) 361, 273 A.P.R. 361 (Q.B.).
Future of Juvenile Law” (1967) 1 Fam. L.Q. 1 at 40-41.
McGILL LAW JOURNAL
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We submit that even if these provisions guarantee the young person the
right to consult counsel and a parent, this right should be stated explicitly within
section 56. While section 11 of the YOA may guarantee the young person a right
to consult counsel in the pre-interrogation context, it does not set out a remedy
for the breach of this right. Similarly, reliance on paragraphl0(b) of the Charter
is unacceptable, for confessions obtained in breach of the rights which it pro-
tects need not necessarily be excluded. In fact, the matter is left to the discretion
of the judge under section 24 of the Charter. When a statement is made by a
young person who has not been given the opportunity to consult counsel, or to
make a statement in the presence of counsel, the statement should be automat-
ically excluded even if the young person has had the benefit of parental consul-
tation and presence.
b: Parents, Persons in Authority and Duress
It has been seen that the right to consult a non-counsel adult is one of the
most significant “special protections” offered to young people under section 56,
in that this right does not exist under the common law or the Charter. Subsec-
tion 56(5) represents a second area where young people are provided with pro-
tection which goes beyond that which would be available to them outside the
YOA. While subsection 56(2) is only relevant in determining the admissibility
of statements made to persons in authority, under subsection 56(5), the judge
may exclude statements, even if made to people who are not persons in author-
ity, if they are obtained while under duress. There is clearly a strong relationship
between the definition of “person in authority” under subsection 56(2), and the
extent of use of subsection 56(5). If “person in authority” is interpreted broadly,
the question of the admissibility of statements will be govemed by subsection
56(2). On the other hand, if “person in authority” receives a narrow interpreta-
tion, there will be a greater scope for application for subsection 56(5).
In the case of R. v. A.B., the Ontario Court of Appeal considered the ques-
tion of whether a young person’s mother was, in law, a “person in authority.”‘2
While the court did not exclude the possibility of a parent being characterized
as a “person in authority,” it found the mother not to have been a person in
authority on the facts of the case. In fact, it defined “person in authority” quite
restrictively.2″6 In a case comment on the Court of Appeal’s decision, Bala
285R. v. A.B. (1986), 13 O.A.C. 68,50 C.R. (3d) 247,26 C.C.C. (3d) 17 (C.A.) [cited to O.A.C.].
2861bid. at 74, where the court said the following about the concept of “person in authority”:
(1) As a general rule, a person in authority is someone engaged in the arrest, detention,
examination or prosecution of the accused … (2) In some circumstances, the complain-
ant in a criminal prosecution may be considered to be a person in authority. (3) The
parent of an infant who is the injured party or complainant in a criminal prosecution
may be a person in authority. Such a conclusion would depend on the factual back-
ground. (4) In some circumstances, a person not in authority could become clothed
with authority when in the presence of those actually in authority, that person offers an
inducement and those actually in authority do not dissent from it. (5) The question as
to whether the statement was made to a person in authority will be viewed subjectively
from the point of view of the accused person who made the statement. The proper test
is “Did the accused truly believe that the person he dealt with had some degree of
power over him?”: (Rothman v. The Queen, [1981] 1 S.C.R. 640, 59 C.C.C. (2d) 30,
19931
NOTE
expresses his support for the “relatively narrow approach taken to the concept
of person in authority.” 7 He suggests that “an examination of subsection 56(2)
indicates that parents are not usually to be considered persons in authority” and
are actually seen as “the natural guardians” of their children.”s While Bala rec-
ognizes that parents can sometimes act contrary to their child’s best interests, he
does not feel that the expansion of the concept of “person in authority” is the
appropriate way of dealing with this problem. He suggests that the courts should
use subsection 56(5) as a means of excluding statements made by young people
who have been unduly pressured by their parents: “It would seem that subs.
56(5) of the Y.OA. was specifically included to govern questioning by individ-
uals such as parents, who have the potential to intimidate young persons, while
subs. 56(2) is to much more closely govern interrogations by the police and
other agents of the state.” 9
This position on the respective applications of subsections 56(2) and 56(5)
should be adopted by the courts. As Bala points out, parents are generally
unaware of the detailed provisions of the YOA and will very rarely fulfil the
warning requirement of paragraph 56(2)(b). If parents are considered persons in
authority, “statements by their children to them would effectively never be
admissible, because subsection 56(2)(b) would never be satisfied.” ’29 If this was
the result desired by the drafters, they surely would have made it explicit. As
such, the use of subsection 56(5) as a way of dealing with the problem of paren-
tal “intimidation” is clearly more in line with the overall scheme of section 56.
It must be acknowledged, however, that there are problems with the use of
subsection 56(5), rather than subsection 56(2), to govern the admissibility of
statements made by young people to their parents. First, the application of sub-
section 56(5) is limited by the definition given to the concept of “duress.” At
common law, the defence of duress requires “a threat of death or serious
injury ‘ and i’s not available where the individual asserting it has “an obvious,
safe avenue of escape.” ‘292 This was modified in Horvath v. R.,2 93 where the
Supreme Court of Canada held that the belief that one was in danger of imme-
diate death or bodily harm was not always necessary in order for duress to be
found. The defence would also be available when the accused was not acting of
his own free will or of an independent mind. In the case of R. v. Kenneth R. (No.
121 D.L.R. (3d) 578]. (6) A person who is a witness for the prosecution will not, as
a general rule, be deemed to be a person in authority. (7) [A] psychiatrist, even when
examining an accused to determine if he is a dangerous sexual offender, will not be
considered to be a person in authority …
The court also emphasized that there must be “some realistic and close connection between the
decision to call in the authorities and the offered inducement to the child to make the statement”
before a parent could be considered, in law, a person in authority (ibid. at 75).
287Bala, supra note 255 at C & A.71.
28’Ibid.
2t9lbid. at C & A 72.
29 lbid. at C & A 71. Note that these comments are equally applicable to teachers, social workers
and many others in whom children may confide.
291R. v. Mena (1987), 57 C.R. (3d) 172 at 188 (Ont. C.A.).
2921bid. at 190.
293[19791 2 S.C.R. 376, 7 C.R. (3d) 97, 44 C.C.C. (2d) 385, 93 D.L.R. (2d) 1.
REVUE DE DROIT DE McGILL
[Vol. 38
2),294 counsel for the young accused invoked subsection 56(5) in asking the
court to exclude statements made by the young person to his parent. The court
refused to do so, and concluded that:
All of the surrounding circumstances were considered in order to determine
whether the young person had acted of his own free will or independent mind or
whether he was so overwhelmed and overcome by the situation that he acted as
a puppet at the hands and direction of a manipulating parent … [No such set of
circumstances had existed … The statements were not given under duress imposed
by any person present at the time of their utterance.2 95
Similarly, in R. v. C.C.,296 the court ruled that the atmosphere in which a
young person made a statement was not “oppressive” or “intimidating” enough
to constitute duress. The court adopted the definition of “duress” used in the
Oxford Dictionary: “forcible restraint, imprisonment; -compulsion, esp. impris-
onment, threats or violence, illegally used to force person to do something.”
Applying this definition, the court ruled that the accused had not discharged the
onus on him to establish that the statement was given under duress even though
the accused’s statements were made to a group of hostile youths who would not
let him leave the scene and kicked and threatened him.
In our opinion, it is inappropriate for the courts to borrow the definition of
duress used in the context of the general criminal law and apply it to young
offenders under subsection 56(5). In the adult context, the concept of duress does
not govern with respect to the admissibility of confessions. Therefore, it is dif-
ficult to understand how the courts can import the concept unchanged into juve-
nile confessions law. Moreover, the very existence of subsection 56(5), and the
entire YOA, is based on the recognition that young people have special needs
which are not fully addressed by the standard principles of criminal law and evi-
dence. The application of the traditional definition of duress in the context of the
YOA is certainly at odds with this fundamental premise. In addition, if courts are
to interpret “person in authority” in a narrow manner, as they did in R. v. A.B.,2
it is necessary to develop a broad definition of duress. If not, parents and other
individuals who will generally. not be considered “person(s) in authority” will be
able to apply considerable pressure on young people to confess, without falling
within the purview of any part of section 56. The fact that they are not “person(s)
in authority” would make subsection 56(2) inapplicable, and, as is made clear in
Kenneth R., the behaviour would generally not fall within the traditional defini-
tion of duress and could not be excluded under subsection 56(5). If subsection
56(5) is to play any meaningful role in governing the admissibility of youth con-
fessions, a flexible, context-based defimition of duress must be developed.
There is a second problem with the use of subsection 56(5) as a means to
exclude statements made by children to individuals who are not persons in
authority. Even if it has been proved that a statement was given under duress,
29411985] W.D.F.L. 1632, 14 W.C.B. 372 (Ont. Prov. Ct., Fam. Div.) [hereinafter Kenneth R.].
See Y.O.S. 56 600 at 64:2.
2951bid.
,296(1985), 15 W.C.B. 71, [1985] W.D.EL. 2088 (Ont. Prov. Ct., Fam. Div.). See Y.O.S. 56 600
297Supra note 285.
at 64:1.
1993]
NOTE
the court retains a discretion to admit it.29 In criticizing this aspect of subsection
56(5) one author said the following: “I1 y a lieu de se demander … si le mot
‘peut’ dans ce paragraphe n’est pas une erreur 1gislative. En effet, si la con-
trainte est bel et bien prouv6e, le juge ne devrait-il pas exclure la d6claration
puisque sa fiabilit6 est srieusement mise en doute.”29 We find this comment
compelling given the purpose of section 56. If section 56 was intended to extend
special protections to young persons, then creating such a discretion gives the
courts the power to undermine these very protections. Accordingly, we submit
that subsection 56(5).should indeed be amended to replace the word “may” with
the term “shall.”
. The final factor to be considered in the discussion with respect to subsec-
tion 56(5) relates to burdens of proof. Where a statement is made to a “person
in authority,” it is presumptively inadmissible unless the Crown shows that the
requirements of subsection 56(2) have been met. Where a statement is made to
someone who is not considered a “person in authority,” it will be admitted
unless the young person proves that the statement was given under duress. It
may seem, then, that it would be to a young person’s advantage to insist upon
an expansive definition of “person in authority,” and thus avoid having to bear
the burden of proving” duress. It has been held, however, that while the Crown
must establish beyond a reasonable doubt that subsection 56(2) has been com-
plied with, a young person need only satisfy a judge on a balance of probabil-
ities that there has been duress.3″ Thus, where it is incumbent on the young per-
son to establish the basis upon which a confession should be excluded, the
burden of proof is less onerous than that faced by the Crown.
The question of the admissibility of statements made by young people to
their parents will generally arise where the prosecution wishes to introduce such
a statement into evidence. As we have seen, the interplay of subsections 56(2)
and 56(5) should ensure that those statements which have been made to parents
who have unduly pressured their children to “talk” will be inadmissible. One
might ask, however, whether statements made by young people to their parents
should ever be admissible. Perhaps parent/child communication should be priv-
ileged such that a parent could never be compelled to reveal matters told to them
in confidence by their children. As Bala points out: “It has been accepted that
spousal communication is privileged; the family unit is protected from state
interference to the extent that one spouse is not compelled to reveal what was
told by the other. Arguably, parent-child communication should be entitled to
the same protection.” ” The Ontario Court of Appeal has discussed the role that
the family plays in the overall scheme of the YOA as follows:
For the most part, incidents of childhood transgressions are resolved as a result of
family discussions culminating in parental counselling, the establishment of
guidelines for future conduct and often some form of discipline. Such a resolution
298S. 56(5) begins as follows: “A youth court judge may rule inadmissible …” [emphasis added]
299F. Daviault, “D~veloppements r~cents en mati~re de declaration extrajudiciaire” in Formation
Permanente, Barreau du Qu6bec, ed., Diveloppements r~cents en droit criminel (Cowansville:
Yvon Blais, 1989) at 173.
3Kenneth R., supra note 294.
30 Bala, supra note 255 at C & A 72.
1000
McGILL LAW JOURNAL
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is in the interests of the community and the young person and is clearly contem-
plated by the Young Offenders Act. The Act contains a declaration of principles.
It is stated in subsection 3(d) that, in circumstances where it is not inconsistent
with the safety of society, measures other than judicial proceedings are to be con-
sidered. Thus family discussions leading to the identification of problems and the
provision of assistance without judicial intervention are encouraged by the Act.3
2
0
This passage sets out a strong argument in favour of legislating a privilege for
parent-child communication.
The need to recognize a privilege for parent-child communication is all the
more compelling with respect to information conveyed to parents where chil-
dren have chosen to “consult” a parent pursuant to paragraph 56(2)(c). Clearly,
this “right to consult” loses much of its value if, following the consultation, the
prosecution could compel parents to disclose the contents of their conversation
with their children. Imagine the injustice which would result if “consulted” par-
ents who have instructed their child to remain silent could themselves be forced
to testify as to any incriminating statements made to them by their child. At the
very least, the communication between parents and children in the context of the
exercise of paragraph 56(2)(c) right must be protected. As the Ontario Court of
Appeal aptly pointed out in the above quotation, it is in the interests of the child
and the community to foster a relationship of trust and confidence between chil-
dren and their parents.
c. Waiver
Subsection 56(4) outlines the conditions under which young persons may
waive the rights accorded to them under section 56. The first point to note is that
only the rights set out at paragraphs 56(2)(c) and (d) can be waived. 3 ‘ The pros-
ecution must therefore prove that the requirements of paragraphs 56(2)(a) and
(b) have been met before even raising the issue of waiver. This means that a
statement made by a young person must always be voluntary and the person to
whom the statement was given must always have clearly explained to the young
person “in language appropriate to his age and understanding” that he or she has
the rights enumerated at subparagraphs 56(2)(b)(i)-(iv). It is only after these
requirements have been met, and it is apparent that the young person has not
exercised his or her rights under paragraphs 56(2)(c) and (d) that the issue of
waiver becomes relevant.
Section 56(4) reads as follows:
A young person may waive his rights under paragraph (2)(c) or (d) but any such
waiver shall be made in writing and shall contain a statement signed by the young
person that he has been apprised of the right that he is waiving.
The requirement that any waiver be in writing must be emphasized. Absent a
writing, the Crown is foreclosed from claiming that a young person has waived
his or her rights.” 4 This writing requirement is unique to the YOA and represents
302See R. v. A.B., supra note 285 at 75-76.
303See s. 56(4), supra note 221.
04R. v. A.F.G. (1985), 13 W.C.B. 348 (B.C. Prov. CL).
3
1993]
NOTE
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another area where the protection of young people pursuant to section 56 is
broader than that available to adults.
The insistence on written waivers in subsection 56(4) is clearly designed
to impress upon young people the seriousness of their choice to waive their
rights and to give a statement to the police. Even after a young person- has orally
expressed his or her willingness to “talk” to the police, the necessity of a written
waiver provides him or her with an opportunity to change his or her mind by
simply not signing a waiver. The requirement that a waiver be in writing is
somewhat controversial. Critics argue that the inability to admit into evidence
a voluntary confession, which has been preceded by an oral, as opposed to writ-
ten, waiver, is unduly restrictive.”5 They insist that what should be emphasized
is simply that a young person understand his or her rights and the consequences
of waiving them.
The arguments against the writing requirement at subsection 56(4) miss the
main point. It is the young person’s understanding of his or her rights, and of
the implications of giving them up, which is essential. In fact, the written waiver
is one of the means of proving this requisite level of understanding. Where chil-
dren seem willing to speak, and yet do not agree to sign a waiver, it could mean
one of two things. Their refusal may indicate that despite their earlier expression
of “willingness to waive,” they are in fact hesitant to do so. In this case, the
writing requirement is serving the cautionary function intended of it. In the
alternative, a young person’s refusal to sign should raise questions about
whether the apparent decision to waive was truly accompanied by a genuine
understanding of the young person’s rights and of the consequences of waiving
them. It seems fair to say that most young people who truly desire to waive their
rights, and understand the implications of doing so, will generally sign a waiver
if it is explained to them that this is a necessary step in the procedure.3″ There-
fore, the arguments in favour of eliminating the writing requirement are in fact
arguments against ensuring that waivers are the result of firm, reasoned deci-
sions on the part of young people.
Those who would like to see subsection 56(4) amended so as to include
the possibility of an oral waiver seem to assume that this would result in the
admission of more statements made by young people into evidence. However,
upon examination of the cases dealing with oral waivers of constitutional
rights by adults, it is far from clear that such an increase would occur.07 The
onus on the Crown to prove that there has been an effective waiver is burden-
some. It must be “clear and unequivocal” that the waiver was made with full
knowledge of the rights, and a true awareness of the consequences of the
ishing the writing requirement.
305The Canadian Association of Chiefs of Police has been one of the strongest advocates of abol-
36The exception to this comment may be illiterate children or children with learning disabilities.
In this respect, one could argue that the limited capacity of some children to understand their rights
precludes them from ever validly waiving them.
30 7 Vhile it is beyond the scope of this paper to do a survey of the jurisprudence with respect
to the waivei of rights under the .Charter, it can be observed that the general tendency of the deci-
sions is to subject waivers to increasing scrutiny.
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waiver.” 8 Of particular interest is the case of R. v. Clarkson, in which the
Supreme Court of Canada held that being in an advanced stage of intoxication
negated the possibility of a valid waiver.3 There is certainly an analogy to be
made between the destabilizing effects of alcohol, and the lack of knowledge
and experience which characterizes youth. Given the degree of evidence which
the court would probably require before accepting the validity of an oral waiver
made by a young person, the requirement of written proof should appear less
objectionable.
In addition to being “written,” a waiver must “contain a statement signed
by the young person that he has been apprised of the right that he is waiving.”310
This requirdment is linked to the duty at subsection 56(2) to clearly explain to
young people, “in language appropriate to their age and understanding,” that
there are certain rights available to them. In interpreting this provision, the
courts have required more than the mere presentation of a signed statement indi-
cating that the young person has been “apprised” of his or her rights. In each
case, the court assesses the subjective understanding of the young person in an
effort to determine whether the evidence indicates that the young person under-
stands his or her rights and the consequences of waiving them. Age, education,
experience with the police, and other factors particular to the accused will be
assessed in this context.
The current wording of subsection 56(4), coupled with its interpretation by
the courts, implies that, given the proper explanations, young people are capable
of understanding their rights and of making an informed decision as to whether
to waive them. There is reason to believe, however, that this may be an invalid
assumption.
The Abramovitch-Bedali study mentioned above3 ‘ was designed to exam-
ine young people’s understanding of their right to counsel and their ability to
make a valid waiver. Students were asked to contemplate a hypothetical situa-
tion in which they had been accused of shoplifting. Half were asked to assume
that they were innocent and half were to assume that they were guilty. The stu-
dents were read all of the usual statements given to youths by the Peel Ontario
Regional Police office, in the language which that office requires. The students
were shown a waiver form. They were asked if they would sign the form or not,
and why.
A full third of the sample did not understand the basic meaning of the form.
Of those who did not understand its meaning, sixty-five per cent said that they
would sign it anyway. There was no age difference between the youths who
chose to sign the form and those who did not. These results suggest that the
requirement that youths sign a document in order to waive their right to counsel
does not guarantee that the young person will consider his or her legal rights.1
308R. v. Clarkson, [1986] 1 S.C.R. 383, 25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493.
3O9lbid.
310S. 56(4).
3 11Supra note 274.
312lbid. at 15.
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Furthermore it must be stressed that the number of youths who chose not to sign
the waiver in this relaxed setting is significantly higher than the number of those
who reportedly waive their rights in real situations.1 3
In order to assure ourselves that waivers will, as a general rule, be made
with a full understanding of their implications, safeguards beyond those which
currently exist must be accorded. Only in this way will the special needs of
youths be addressed. We believe that waivers by young people should be
accepted only after they have had their rights explained to them by counsel. The
current scheme, which requires that explanations be given by* the police, is
unsatisfactory in that it places the police in the almost irreconcilable roles of
adversary and advisor. Even those officers who are most conscientious in their
explanations could not be expected to provide the same type of explanations as
would legal defence counsel. If after having been apprised of his or her rights
by a lawyer, the young person decides to waive these rights, he or she should
then be able to do so. This would include an ability to waive the right to make
a statement in the presence of counsel.
d. Per Se Rules of Exclusion vs. Judicial Discretion
Thus far we have expanded upon various special protections against self-
incrimination accorded to young people through the mechanism of section 56.
We have discussed the right to consult a non-counsel adult, the right to counsel,
the notion of duress, and the requirements for a valid waiver. The final special
protection granted to young people is that all the requirements in section 56 are
mandatory. If the Crown does not prove conformity with the section 56 require-
ments beyond a reasonable doubt, the statement is automatically excluded.” 4 In
this sense, section 56 can be seen to set out a per se test of exclusion.
On the other hand, the determination as to whether some of the conditions
outlined in section 56 have been satisfied calls for the exercise of judicial dis-
cretion. For example, paragraph 56(2)(b) requires the court to assess whether an
explanation has been clearly given “in language appropriate to a young person’s
age and understanding.” Under subsection 56(4), the court must decide whether
a young person has been “apprised” of his or her rights. In addition, some
judges believe it appropriate to assess the “quality of consultation” in order to
determine whether the consultation rights of paragraph 56(2)(c) have been prop-
erly accorded.” 5 The common feature of these exercises of judicial discretion is
that, in each, the judge will examine the age, education, and experience of the
young person, among other factors, in an effort to determine whether a partic-
ular young person has received the full benefit of section 56. Judges are careful
to ensure that the requirements of section 56 are not treated as mere formalities;
both the letter and the spirit of the law must be respected.
3 13 1bid.
314The exceptions to this are first, if the statement is spontaneous and falls within s. 56(3), or
3 15See text accompanying notes 266-69.
second, if a valid waiver has been made under s. 56(4).
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While section 56 does leave room for the exercise of discretion to exclude
statements, even if, on its face, the provision’s requirements appear to have been
respected, it does not enable judges to use their discretion to “admit.” This
means that even if a young person can be seen to have made a voluntary state-
ment, in full awareness of his or her rights, the court will be unable to admit it
if any element of section 56 has not been respected. While this result has been
criticized by some, particularly for providing too much protection to “experi-
enced” youth, it is a necessary consequence of the desire to provide all young
people with adequate safeguards in the interrogation context. As one author has
put it, “the problem of providing unnecessary protection for sophisticated juve-
niles is overshadowed by the need to afford adequate protection to most juve-
niles.”3 6 As we have seen, “most” young people do indeed require special pro-
tection against self-incrimination.1 7 As such, section 56 represents an attempt
by the legislator to address young people’s special needs. Justas the test of “vol-
untariness” sets out the minimum standard for the admissibility of adult confes-
sions, section 56 provides that certain requirements must always be respected if
we are to justify the admission into evidence of statements made by young peo-
ple. Furthermore, in insisting on the need for absolute compliance with this pro-
vision, the legislator has provided law enforcement officers with clear guide-
lines as to acceptable and unacceptable behaviour.
Section 56 of the YOA modifies the general law of confessions with regard
to the special needs of young people. The work of sociologists, psychologists,
social scientists, lawyers and police officers alike provides support for such a
provision in that it confirms that children in the interrogation process face
unique pressures to “talk.” These pressures lead children to confess at a higher
rate than adults, and increases the likelihood that they will make false confes-
sions in response to police interrogation.
e. Conclusions
While the principles underlying a unique regime of youth confessions are
sound, it is not the case that section 56 represents a perfect fulfilment of these
principles. First, section 56 places too much emphasis on the role of parents in
the interrogation context. While some parents may provide their children with
badly needed support and advice, others may be unwilling or unable to do so.
In fact, some parents may be more intimidating to children than police officers
are. Where parents “force” children to confess, courts should not hesitate to
exclude statements by making a finding of duress under subsection 56(5). If
“duress” is given a definition that is sensitive to the context of the YOA, and the
discretionary element of this provision is removed, subsection 56(5) can begin
to play a meaningful role in the overall scheme governing the admissibility of
youth confessions.
Second, while parents may not always be helpful to their children, legal
counsel will possess the objectivity and expertise necessary to provide young
316Grisso, supra note 266 at 1137.
317See text accompanying notes 223-44.
19931
NOTE
1005
people with valuable advice. Subsection 56(3) must be rewritten to insist upon
the ability of children to consult both parents and counsel in the pre-
interrogation context. Furthermore, since many young people do not appreciate
the advantages of receiving counsel, a “conversation” with a lawyer should be
arranged as a matter of course before interrogation takes place. In this way, all
children will be placed on a more level playing field in that they all will have
access to a competent source of infonnation and advice.
Third, the provisions dealing with waiver are also problematic. They
encompass the unrealistic belief that young people have the capacity to make an
informed waiver of their rights. Indeed, studies have raised grave doubts about
the ability of children to understand their rights, and the consequences of waiv-
ing them. Again, a “conversation” with counsel is necessary to ensure that
young people truly understand the advantages associated with the exercise of
their rights, and the implications associated with waiver.
The requirement of a written waiver should be maintained. It is probably
no more limiting than the safeguards which have developed with respect to oral
waivers. The writing requirement also plays an important role in proving the
level of understanding necessary for a valid waiver.
Finally, the mandatory nature of section 56 is perfectly consistent with the
desire to provide young people with special protection against self-incrimina-
tion. The insistence on absolute compliance ensures that all those who apply this
provision respect the legislative determination that, as a class, children have
special needs. To this end, section 56 sets out the basic rights which must be
made available to all young people.
If the necessary modifications to this provision are made, section 56 could
be one area of the YOA which appropriately addresses the “special needs” of
youth by according meaningful special protections.
B. Protection of Society
The phrase “protection of society” can be found three times in the Decla-
ration of Principle3 and is used as a central concept in relation both to sentenc-
ing and transfer of young persons to ordinary court. However, this concept is no
less ambiguous than the concept of “special needs.” While, in a larger sense, the
protection of society is the primary goal of any criminal system and while
everyone agrees in the abstract that society should be “protected” from crime,
the real question under any legislative regime is how best to achieve that goal.
In this respect, there are at least three interpretations of how society might
best be protected from juvenile crime. First, it may be argued that the longer the
young offender is kept off the street, the better society is protected. According
to this argument, incarceration is the primary form of protection and the free-
dom of the young offender is given low priority. Second, it may be asserted that
society is best protected when the juvenile justice system operates so as to reha-
318See s. 3(1)(b), s. 3(1)(d), s. 3(1)(). See supra note 9 for the full text of these provisions.
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bilitate young offenders. This theory, which was highly influential under the
JDA, links the protection of society to treatment rather than punishment of
young offenders. Third, it may be argued that society is protected when the
juvenile justice system deters potential wrongdoers from committing crimes.
All three of these interpretations have their merits and, in any criminal sys-
tem, choices must be made as to the relative importance to be accorded to each.
However, as each of these interpretations represents a different conception of
“protection of society,” it is clear that asserting “protection of society” as a guid-
ing principle does not in itself constitute a choice between these three interpre-
tations. Given that no single definition can be attributed to this phrase, it is not
surprising that the use of “protection of society” as a central concept in relation
to sentencing and transfer has resulted in substantial confusion and inconsist-
ency in the case law. In this section we will argue that the legislator should, in
each section of the YOA, define more clearly what is meant by the phrase “pro-
tection of society” in that context. This will necessarily involve a choice in rela-
tion to each section between the three interpretations we have outlined.
1.
Sentencing
The phrase “protection of society” is used repeatedly in sections relevant
to dispositions under the YOA. 319 However, nowhere in these sections is “protec-
tion of society” defined or explained. As a result, the courts have been left with
the task of specifying precisely what is meant by this crucial concept.20 As Rob-
ert Nuttall has pointed out, this task is by no means a simple one:
Can we get a definition of “protection of the public”? The courts have been wres-
tling with that for years and years. I was in a position as crown counsel to try and
call evidence of what this meant. It is such a vague term. If all you mean is that
the longer he is off the street the better the public is protected then you have not
added very much by your definition. 321
In the sentencing context, the difficulty in defining the concept of “protec-
tion of society” becomes immediately apparent. Different courts have inter-
319See s. 24(1), s. 24(5), s. 261(2)(d).
32Language similar to “protection of society” is used in s. 498ff of the Criminal Code concern-
ing the granting of bail. In the case of Re Powers v. R. (1972), 9 C.C.C.(2d) 533 at 544-45 (Ont.
H.C.)” [hereinafter Powers], Lemer J. stated that the “public interest” involves many considerations,
not the least of which is the image of the Criminal Code and the Bail Reform Act, apprehension
and conviction of criminals, attempts at deterrence of crime and protection of the Canadian public.
Another case (R. v. Favel (1984), 35 Sask. R. 235 at 236-37 (Q.B.)) equated “protection of the pub-
lic” with the “public interest,” necessitating the conclusion that protection of the public includes
maintaining the integrity of the criminal justice system as iterated in Powers. This was the position
taken in R. v. Demyen (1975), 26 C.C.C. (2d) 324 (Sask. C.A.).
In a similar vein, many bail cases do not provide an interpretation of protection of the public.
However, by implication, it would seem that the phrase is being applied literally. See e.g. R. v.
Giles (1985), 70 N.S.R. (2d) 176 at 178-80, 166 A.P.R. 176 (S.C.(T.D.)). In other words, it is the
perceived dangerousness of the accused which is being assessed. See also R. v. Favel, ibid.; R. v.
Legge (1988), 72 Nfld. & P.E.I.R. 77 at 79 (Nfld. S.C.(T.D.)).
321Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-58, An Act to
Amend the Young Offenders Act and the Criminal Code, 2d Sess., 34th Pan., 1989-90 (Ottawa:
Queen’s Printer, 1990) Issue No. 4 at 4:31 (18 October 1990) (C.A.) [hereinafter Legislative Com-
mittee on Bill C-58].
1993]
NOTE
1007
preted it to subsume at least three broad principles. First, some courts have
defined “protection of society” as public abhorrence of certain crimes3 22
together with denunciation of that behaviour.3″ Second, some courts have
equated it with the broad principle of deterrence.324 And, third, in a small
number of cases, courts have linked “protection of society” with the physical
incapacitation or incarceration of a youth.3″
There is no obvious consensus about which of the above interpretations is
most appropriate. For example, in R. v. M.Y.W.,326 the court held that traditional
principles of sentencing such as “denunciation” are not to be considered in
determining young offender dispositions. By contrast, the Alberta Provincial
Court set out fifteen factors that a youth court must consider before concluding
what is a “fit and proper disposition for a particular young person.”‘327 The tenth
factor listed by the court was “denunciation.”3 2
,However, the most consistent source of interpretative disparity relates to
the question of whether “protection of society” subsumes general and/or indi-
vidual deterrence. General deterrence, according to Ashworth, can be defined as
the “inhibiting effect of sanctions on the criminal activity of people other than
322R. v. S.R.H. (1990), 56 C.C.C. (3d) 46, 38 O.A.C. 127 [hereinafter S.R.H. cited to C.C.C.].
See also R. v. 0. (1986), 27 C.C.C. (3d) 376, 16 O.A.C. 358 [cited to C.C.C.].
323R. v. A.C.H. (1990), 113 A.R. 344 (Prov. Ct.).
324Many cases determine that the protection of society includes deterrence, for example S.R.H.,
supra note 322, and R. v. MJ.C. (1985), 42 Sask. R. 197, 22 C.C.C. (3d) 95 (C.A.) [hereinafter
MJ.C.]. However, as will be shown later, many cases distinguish between general and individual
deterrence, with courts disagreeing upon which is subsumed by protection of society.
325R. v. A.C.H., supra note 323 at 346, stated that public protection through segregation of the
offender is to be considered. In R. v. C.W.W. (1986), 68 A.R. 196 at 198-99, 25 C.C.C. (3d) 355
(C.A.) [cited to A.R.], the Alberta Court of Appeal reaffirmed its previous judgment in R. v. G.K.K.
(1985), 63 A.R. 379, 21 C.C.C. (3d) 558 (C.A.) [cited to A.R.], and maintained that protection of
society, as well as including individual deterrence, incorporates incapacitation, “as it is in the case
of an adult offender.” See supra note 175 where the relevance of adult principles in sentencing is
briefly discussed.
326(1986), 26 C.C.C.(3d)’328 at 330-31 (B.C.C.A.).
327R. v. M.E.M. (1989), 92 A.R. 321 at 322-23 (Prov. Ct.).
328 1bid. at 323. The 15 factors listed are:
1. the age, character, antecedents and social history of the young person;
2. the prior youth record, dispositions imposed, and the responses of the young per-
son to prior dispositions;
3. the recommendations contained in the predisposition materials;
4. the young person’s level of participation in the offence;
5. the young person’s post-offence attitude and behaviour,
6. the lack of evidence of any premeditation by the young person;
7. the gravity of the offence;
8. the possibility of rehabilitation;
9. individual deterrence of the young person;
10. denunciation;
11. appellate decisions in this jurisdiction dealing with dispositions concerning young
persons;
12. overlapping child welfare concerns;
13. the protection of the public;
14. the philosophy contained in s. 3 of the Young Offenders Act (Canada) and finally;
15. predisposition detention.
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the sanctioned offender.”‘ 9 By contrast, individual deterrence aims at discour-
aging the sanctioned offender from further criminal activity.330
While courts generally accept that individual deterrence is an appropriate
goal for young offender dispositions, there has been some debate over the issue
of whether general deterrence should play a role. There is a clear split along pro-
vincial lines on this issue. In the cases of R. v. G.K.K. 31′ and R. v. C.W.W, 332 the
Alberta Court of Appeal came down with strong statements to the effect that
general deterrence has no place in the sentencing of young offenders. In R. v.
C.W.W., which involved a young person convicted of armed robbery, break and
enter, and the assault of a pharmacist with a baseball bat, the Court of Appeal
explicitly rejected the view that the principle of the “protection of the public”
includes general deterrence. 3 3 Although this view of general deterrence has
been somewhat moderated in subsequent Alberta case law,M the general tend-
ency of Alberta courts has been to follow R. v. G.K.K 3 s The provinces of New-
foundland and New Brunswick have followed Alberta’s lead by affirming that
general deterrence has no role in the determination of dispositions under the
YOA.
336
In contrast to the view expressed in Alberta, courts in several other prov-
inces have held that general deterrence is a factor that must be considered when
sentencing young offenders. The leading case in this regard is that of R. v. o.,
where the Ontario Court of Appeal refused to reduce a disposition of three
months’ secure custody and twelve months’ probation for a young offender con-
victed of three counts of break, enter and theft. The Court declared that the prin-
ciple of “protection of society” contained in paragraphs 3(1)(b), (d) and (f) of
the YOA subsumes the concepts of general and specific deterrence 33 According
to the court in that case, general deterrence has diminished importance in young
337
329See A. Ashworth, Sentencing and Criminal Justice (London: Weidenfeld and Nicolson, 1992)
at 140.
3301bid.
331Supra note 325. In R. v. G.K.K., the Alberta Court of Appeal rejected the argument that cus-
tody was necessary for the purposes of deterrence in the case of a 16-year-old young offender who
had pleaded ‘guilty to armed robbery, on the basis that “deterrence to others does not … have any
place in the sentencing of young offenders …” (ibid. at 380).
332Supra note 325. In this case, the Alberta Court of Appeal refused to rely on general deterrence
as the basis for its decision to increase the length of a custodial term for a young offender convicted
of armed robbery, break and entry and the assault of a pharmacist with a baseball bat.
3331bid. at 198-99.
334See R. v. A.M.G. (1987), 84 A.R. 161 at 162 (C.A.), where the Court considered deterrence
to be one of several factors relevant to dispositions. The Court did not limit the scope of its reasons
to specific deterrence. See also R. v. D.R.D. (1989), 99 A.R. 16 at 20 (Prov. Ct. (Youth Div.)),
where it was held that general deterrence is a valid consideration in contempt proceedings.
335See e.g. R. v. N.H.T. (1989), 97 A.R. 330 at 335 (Prov. Ct. (Youth Div.)), sentence varied on
a different issue (1989), 97 A.R. 378 (C.A.), where the court affimed that general deterrence can-
not be considered following R. v. G.K.K.
336See R. v. CJ.L. (1986), 59 Nfld. & P.E.I.R. 76 at 78, 29 C.C.C. (3d) 123 (Nfld. C.A.); R. v.
R.C.S. (1986), 68 N.B.R. (2d) 361 at 367, 27 C.C.C. (3d) 239 (C.A.), leave to appeal den’d (1986),
69 N.B.R. (2d) 270n (S.C.C.).
337Supra note 322.
3381bid. at 377.
19931
NOTE
1009
offender sentencing but is nonetheless a factor which must be considered. The
Ontario approach has been followed by courts in Saskatchewan, Nova Scotia
and the Yukon Territory.339 In Quebec, a similar approach was adopted in the
case of Protection de la jeunesse – 431, where the Court of Appeal reduced a
disposition of six months in secure custody to time served plus eighty hours of
community service for a fifteen-year-old young offender convicted of traffick-
ing cannabis to students at his high school.’ The Court held that general deter-
rence is a factor which must be considered in young offender sentencing, but
that it would be wrong to use it as the sole or paramount criterion. In subsequent
cases this view has been interpreted to mean that the concept of general deter-
rence must be subordinated to the more important.principles of the young per-
son’s needs and specific deterrence.”4 As in Ontario, Quebec courts have linked
general deterrence with the notion of the “protection of society,” on the reason-
ing that the imposition of a particular sentence may instil fear of a similar sanc-
tion or promote respect for a protected social value.2 Quebec courts give more
weight to the principle of general deterrence in cases of violent and premedi-
tated crime.343
The controversy over the role of general deterrence in young offender sen-
tencing was the subject of a recent appeal to the Supreme Court of Canada. In
R. v. JJ.AU.,3
the Supreme Court followed the lead of the Ontario Court of
Appeal in R. v. O.,”
to hold that general deterrence must be considered, but that
it has diminished importance in determining the appropriate disposition in the
case of a young offender.46 Cory J., writing for the Court, based his opinion on
the principle of the “protection of society” as contained in section 3 of the YOA,
as well as what he deemed the “best interest of the young person and the public”
under sections 20 and 24 of the Act.’47 He also made reference to the sociolog-
339 See R. v. MJ.C. (1985), 42 Sask. R. 197 at 199,22 C.C.C. (3d) 95 (C.A.); R. v. K.D.T. (1986),
72 N.S.R. (2d) 213 at 219-20, 173 A.P.R. 213 (S.C.(A.D.)); R. v. Darren Douglas B., [1988] 3 Y.R.
5 (C.A.).
34[1990] RJ.Q. 645 at 654 (C.A.).
341See Protection de lajeunesse-439, [1990] R.J.Q. 1506 at 1510 (Youth Ct.), where the court
refused the Crown’s request to “make an example” of a young offender convicted of procuring a
16-year-old minor for the purposes of prostitution, forcible confinement, sexual assault, possession
of a weapon and conspiracy to commit a criminal offence. The Court (Durand-Brault J.) ordered
a disposition of 18 months in secure custody and expressed the following view about the place of
general deterrence: “l’exemplarit6 ne doit jamais intervenir comme le facteur determinant d’une
sanction ordonnre en vertu de la Loi sur les jeunes contrevenants, elle’doit s’arrater lh o[1 les
besoins r6ducatifs de l’adolescent s’arratent et se trouver compatible avec la n~cessit6 de le dis-
suader lui-meme (exemplarit6 individuelle)” (ibid.).
342 Protection de la jeunesse – 431, supra note 340 at 653.
343 Protection de la jeunesse- 399 (4 March 1989), Quebec City 200-08-000011-881, LE.
89-828 (C.A.).
344Supra note 192. The case involved an appeal from a sentence of 2 years in open custody
which had been ordered for a young offender convicted of 3 counts of break, enter and theft.
345Supra note 322.
346Supra note 192 at 305.
3471n Cory J.’s view, ss. 20 and 24 of the YOA indicate that dispositions must be determined in
the “best interest of the young person and the public” (ibid. at 305). It should be noted that these
precise terms appear in the Act only with respect to ancillary sentencing measures in s. 20(l)(1);
they are not set out as part of a general philosophy for young offender dispositions, as Cory J.
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ical fact that youth crime is often a group activity, and concluded on the basis
of this fact thht there is reason to believe that a disposition under the YOA can
have an effective deterrent effect. 4
The decision of the Supreme Court in JJ.M. goes only part of the way
toward resolving the controversy over the role of general deterrence in young
offender dispositions. The decision may be taken to stand for the principle that
general deterrence is not entirely irrelevant to young offender sentencing. How-
ever, the statement that general deterrence has diminished importance under the
YOA does not provide lower courts with a great deal of guidance as to how the
principle is to be applied in practice. Rather, the judgment of the Supreme Court
on this point highlights the ambivalence of the term “protection of society” and
the difficulty of structuring judicial discretion in a manner which lends itself to
straightforward application by lower courts. While it is unlikely that a trial court
would, in light of JJ.M., deny that general deterrence has some role under the
YOA, there is likely to be disparity over how important this role should be. In
other words, the ambiguity over whether general deterrence has any role will
likely be superseded by a debate over the scope of the role of this sentencing
goal.
In our opinion, the reluctance of some courts to apply the principle of gen-
eral deterrence is well-founded. The principle of general deterrence is based on
utilitarian assumptions. The main utilitarian premise is that a society is rightly
ordered if its major institutions are arranged to achieve the maximum aggregate
satisfaction and the minimum aggregate suffering.349 Deterrence as a penal phi-
losophy follows from the same premise. General deterrence as a sentencing
principle is consequentialist because it is designed not to punish the offender for
the particular offence committed but, rather, to deter others from committing
future offences. In our view, the use of general deterrence as a justification for
punishment is inappropriate for both empirical and moral reasons.
First, since utilitarian principles are justified according to their social ben-
efit, it is clear that the use of general deterrence as a basis for punishment can
only be maintained where there is evidence that it serves to control crime and
thereby to benefit society. However, such evidence cannot be found in recent
empirical research concerning deterrence. In the Sentencing Commission
Report of 1987,350 the Commission inquired into whether traditional utilitarian
goals of sentencing, such as deterrence, were being achieved by the sentencing
process.35′ The Commission’s findings were based on a survey of existing
empirical research and, in particular, on research conducted by Blumstein,
implies. Section 24, which provides for custodial dispositions, refers to the “best interests” of the
young offender only in relation to a court’s power to dispense with a predisposition report. The
interpretation given to these sections, and in particular, the use of the term “best interest,” provides
further evidence of the fact that the courts are reading parenspatrke notions of juvenile justice into
the YOA. For a further discussion of this issue, see the discussion of rehabilitative goals in relation
to sentencing under the YOA, above, text accompanying notes 175-218.
348R. v. JJ.M., supra note 192 at 305.
349j. Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971) at 22.
350Supra note 168.
3511t should be noted that this study focused on sentencing in the adult context.
1993]
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1011
Cohen and Nagin for the United States National Academy of Sciences.352 On
the basis of this research, the Commission concluded that there is little empir-
ical evidence which justifies the imposition of legal sanctions on deterrence
grounds.353 In a report conducted by Cousineau for the Sentencing Commis-
sion, he concluded that: “Drawing upon some nine bodies of research
addressing the deterrence question, we contend that there is little or no evi-
dence to sustain an empirically justified belief in the deterrent efficacy of
legal sanctions. ‘354 Another study cited by the Sentencing Commission con-
cluded that “overall assessment of the deterrent effects of criminal sanctions
ranges from an attitude of great caution in expressing an opinion to outright
scepticism.
355
Although the Commission stressed that “deterrence is a general and lim-
ited consequence of sentencing, 356 the Report acknowledged that it is the cer-
tainty rather than the severity of penalties which is most likely to have a deter-
rent effect.357 This conclusion is consistent with the claim that legal sanctions
can have an “overall” deterrent effect but that it is difficult to use these sanc-
tions to produce specific outcomes or to target particular types or groups of
offenders.
Second, whether or not general deterrence can be justified on empirical
grounds, we believe that there are strong moral objections to its employment
in the young offenders sentencing context. In applying general deterrence as
a guiding sentencing principle, courts may, on grounds of social utility, be
required to impose more severe sanctions on individual offenders than the par-
ticular offences committed by these offenders would otherwise merit. In other
words, general deterrence allows the courts to use individual offenders as
means to achieve a particular social end: the protection of society. This, how-
ever, places the rights of the offender in a blatantly subsidiary position to the
welfare of society. And in a society which places a high value upon the fun-
damental rights of the individual, this runs contrary to moral intuition. As Von
Hirsch argues,
no utilitarian account of punishment, deterrence included, can stand alone. While
deterrence explains why most people benefit from the existence of punishment,
352A. Blumstein, J. Cohen & D. Nagin, eds., Deterrence and Incapacitation: Estimating the
Effects of Criminal Sanctions on Crime Rates (Washington, D.C.: National Academy of Sciences,
1978), cited in Sentencing Commission, supra note 168 at 135, 136.
353Sentencing Commission, ibid. at 135-36.
354F.D. Cousineau, “Legal Sanctions and Deterrence,” as cited in Sentencing Commission, ibid.
355Blumstein, Cohen & Nagin, eds., supra note 352, cited in Sentencing Commission, ibid. at
135-36. See also A. Von Hirsch, Doing Justice: The Choice of Punishments (Boston: Northeastern
University Press, 1986) at 32. Beyleveld also concludes that the severity of penalties does not
affect the recorded offence rates; see D. Beyleveld, A Bibliography on General Deterrence
Research (Kettering: Saxon House, 1980).
at 136.
356Supra note 168 at 138.
357Similarly, Markwart has stated that “the certainty of apprehension, conviction and punish-
ment” may have some discernible impact on the effectiveness of punishment. A. Markwart, “Cus-
todial Sanctions under the Young Offenders Act” in R. Corrado, N. Bala, R. Linden & M. Leblanc,
eds., Juvenile Justice in Canada (Toronto: Butterworths, 1992) 229 at 233.
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the benefit to the many is not by itself a just basis for depriving the offender of
his liberty and reputation. Some other reason, then, is needed to explain the suf-
fering inflicted on the offender: that reason is desert.358
It is submitted that this moral objection has particular force as it relates to
young offenders. We have argued throughout this paper that the lesser moral and
cognitive capacities of the young and their greater vulnerability should entitle
them to special protections from state intrusion. To allow the state to use young
offenders as a means to achieve social protection goals contradicts, in our opin-
ion, the underlying premise of a separate system of justice for young offenders.
Moreover, the adoption of the principle of general deterrence compromises the
commitment to the principle of “least possible interference with freedom” con-
tained under the YOA. 359 By its very nature, general deterrence serves to increase
a young person’s potential contact with the formal justice system. In this sense,
a parallel can be drawn to the criticisms made of the “rehabilitative ideal” under
the JDA. This ideal, which was also based on utilitarian grounds, allowed for
the imposition of disproportionate sanctions in the name of an empirically ques-
tionable social good. In our opinion, the criticisms made by the labelling theo-
rists and the due process activists are as applicable to the principle of general
deterrence under the YOA as they were to the principle of rehabilitation under
the JDA.36
2.
Transfer
a. The Transfer Test
Pursuant to section 16 of the YOA, a young person can be removed from
the ambit of the Act and dealt with under the procedure set out in the Criminal
Code.36″ ‘ Defining the appropriate basis for a transfer order is significant in two
respects. First, a decision to transfer results in the young person being stripped
of many of the advantages provided by a separate system of justice.36’ Second,
358Von Hirsch, supra note 355 at 51.
359S. 3(1)(f).
36See text accompanying notes 56-68, 77-99.
3 611n the following discussion of transfer, reference will be made to the transfer test as formu-
lated and implemented prior to the amendments of May 15, 1992. S. 16(1) of the original YOA
stated:
16(1) At any time after an information is laid against a young person alleged to have,
after attaining the age of fourteen years, committed an indictable offence other
than an offence referred to in section 553 of the Criminal Code but prior to adju-
dication, a youth court may, on application of the young person or his counsel,
or the Attorney General or his agent, after affording both parties and the parents
of the young person an opportunity to be heard, if the court is of the opinion that,
in the interest of society and having regard to the needs of the young person, the
young person should be proceeded against in ordinary court, order that the
young person be so proceeded against in accordance with the law ordinarily
applicable to an adult charged with the offence.
The amended version has been introduced as s. 16(1.1). We will discuss this provision at note 392
and accompanying text.
362While the accused is not deprived of all the safeguards accruing to a young person by virtue
of his age, once transferred, the young person’s jeopardy is defined by the adult regime.
1993]
NOTE
1013
a society’s conception of transfer is invariably a reflection of its particular
vision of youth justice. As noted by Bala: “Transfer is of vital importance not
only for young persons but also for the entire juvenile justice system. By setting
the outer boundary of that system, it also defines its nature.”3 ‘
i Given the importance of the decision to transfer a youth to ordinary court,
it is essential to define when, and by reference to which standard and relevant
criteria, a young person should be removed from the juvenile justice system.
Yet, as will be discussed below, an overview of the transfer jurisprudence
reveals that both the boundaries and the goals of the juvenile system are highly
ambiguous under the YOA. This ambiguity, it will beargued, can be explained
by the use of such vague concepts as the “protection of society” and the “interest
of society” which have been used alternatively and interchangeably by the
courts as guiding principles under section 16.”
According to subsection 16(1) of the YOA, the court, in making a decision
to transfer, must balance the “interest of society” and the “needs of the young
person.” An examination of the case law reveals that there are two potentially
conflicting assumptions which have informed the interpretation of the phrase
“interest of society.” The first is that society will only be adequately protected
if the youth is subjected to the longer custodial sentences made available under
the Criminal Code. The second is that the interest of society is best protected
when youths are rehabilitated.
Proponents of the view that protection of the public demands the incarcer-
ation of young offenders365 have argued that there are instances where the grav-
ity of the case demands an exception to the philosophy and practice of the YOA
and thus a transfer to the adult system.366 For example, in R. v. D.V,3″ a young
person was charged with second degree murder and possession of a prohibited
363N. Bala, “The Need for Increased Flexibility in Transfer Provisions” (1989) 69 C.R. (3d) 172.
364See e.g. R. v. B.R.C. (1984), 13 W.C.B. 193 (Aita. Prov. Ct.); R. v. LAM. (1986), 33 C.C.C.
(3d) 364 (B.C.C.A.).
365See on this perspective Bill C-229, 2d sess., 34th Parl., 1989 (first reading 12 April 1989).
This was a Private Member’s Bill sponsored by M.P. Jim Karygiannis to introduce an automatic
transfer mechanism for youths charged with murder.
366See Legislative Proposals to Replace the Juvenile Delinquents Act, supra note 39 at 8, and
Legislative Committee on Bill C-58, supra note 321 at 3:22, where Chief Thomas Flanagan, speak-
ing on behalf of the Canadian Association of Chiefs of Police (“CACP”), voiced his support for
this approach as follows: “If the person is in prison for a longer period of time, hopefully the public
is not going to be bothered by this person. It is unfortunate that you are not rehabilitating some-
body, but in the long run the importance of the general public is more important than the individ-
ual” (ibid. at 3:33). This sentiment is echoed in R. v. EJ.W. (1985), 22 C.C.C. (3d) 269 at 274 (B.C.
S.C.), R. v. MJ.M. (1989), 89 N.S.R. (2d) 98 at 105-08, 47 C.C.C. (3d) 436 (S.C.(A.D.)), and in
the decision of the Saskatchewan court in R. v. E.E.H. (1987), 52 Sask. R. 75 at 78 (Q.B.). In the
latter case, Wimmer J. ordered the youths to be transferred to adult court and stressed that the seri-
ousness of the offence necessitated a transfer order: “If the public is to have continued confidence
in the administration of justice there must be certainty that crimes so barbarous as this will invite
the strongest possible response from the justice system. Any person who savages his neighbour in
the way that was done here should seldom be entitled to special treatment on account of age alone.”
However, the transfer in that case was later reversed on appeal; see R. v. E.E.H. (1987), 54 Sask.
R. 304, 35 C.C.C. (3d) 67 (C.A.) [cited to Sask. R.].
367(1986), 43 Man. R. (2d) 246, 31 C.C.C. (3d) 253 (C.A.) [cited to Man. R.].
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weapon. It was alleged that he and his brother, who was an adult, provoked a
fight with a twenty-three-year-old man. When the man tried to run away, the
youth and his brother chased him down and pushed him to the ground, where
the brother then proceeded to stab him several times, with the youth’s encour-
agement. The Youth Court judge ordered that the youth be transferred to ordi-
nary court. Upon review, the Manitoba Court of Queen’s Bench allowed the
application and returned the case to youth court. The majority of the Court of
Appeal refused the Crown’s application for leave to appeal. However, in his dis-
senting opinion, Hall J.A. held that “notwithstanding the prospects for rehabil-
itation,” ‘368 the transfer order was justified on a charge of second degree murder
given that the youth was six weeks short of his eighteenth birthday and that the
circumstances of the offence were “particularly disturbing.”‘369 He seized upon
the brutality of the alleged offence and thus the need to impose a harsh sentence
if the youth was subsequently convicted. The “interest of society” was defined
here in terms of extending protection to the public through incarceration, and a
dichotomy was created between the needs of the youth and the interests of soci-
ety.
Similarly, in Protection de la jeunesse -237,370
the Quebec Youth Court
explicitly linked the interests of society to incarceration as follows:
[T]he interests of society means first and foremost, the protection of its members
“from illegal behaviour,” … The pre-eminence of the concept of the interests of
society expresses the legislator’s will to give priority to respect for the social order
[and] respect for collective right in order to push into the background the individ-
ual right of the young person to treatment. [emphasis added] 371
In so ruling, the Court emphasized that the decision to transfer should be based
primarily on an assessment of the youth’s “dangerousness” rather than upon his
prospects for rehabilitation. A similar view was expressed by Goodman J.A.
when, speaking for the Ontario Court of Appeal in R. v. Guy S., 72 he held that
“[t]he reasonable possibility that a young offender can be rehabilitated within
a three-year period does not, standing alone, mandate that such offender be tried
in youth court.3s73
In other instances, considerations such as general deterrence have also
been included in the definition of the “interest of society.” In R. v. W.H., 74 the
Ontario High Court emphasized the need for deterrence in the following man-
ner: “Society’s interest in disposing of allegations of this nature in a manner
which would act as a deterrent to people who may be disposed to commit such
offences must, in the final result, outweigh the needs of the young person. ‘ 75
3681bid, at 250.
3691bid, at 249.
311[1987] R.J.Q. 498, (sub. nom. R. v. M.C.) Y.O.S. 87-125 (Que. Yth. Ct.) [cited to Y.O.S.].
371Ibid. at 502.
372(1991), 5 O.R. (3d) 97, 50 O.A.C. 163 [cited to O.R.].
3731bid. at 113.
374(1989), 31 O.A.C. 372, 47 C.C.C. (3d) 72 (C.A.) [cited to O.A.C.].
375This passage from the unreported High Court decision was cited ibid. at 373. The High Court
decision was reversed on appeal. The Court of Appeal held that the court’s reference to deterrence
through public proceedings was not supportable under the system established under the YOA.
1993]
NOTE
1015
An emphasis on deterrence as a part of “protection of the public” has also
been linked to the publicity that attaches to cases in adult court. In a case where
a gang of youths used threats to guard their anonymity and bar witnesses from
testifying against them, the court remarked that transfer was in society’s inter-
est? 76 Removing these youths from the juvenile court would, “to some extent
counter the mystery and fear which the activities of these gangs spread through-
out the community and encourage reluctant witnesses to come forward and tes-
Similarly, in R. v. MJ.M.,378 the court stated that: “Public denunciation
tify.”
of serious crimes, public confidence in the administration of justice and the
reaction of society to such crimes and the penalties stipulated by Parliament for
them are all important factors in considering the interests of society.”
By contrast, those who have favoured pursuing rehabilitation as a means
of securing the protection of the public have articulated a number of reasons
in support of this position. It has been argued that defining “interest of soci-
ety” in terms of immediate protection, and using section 16 to gain access to
longer sentences in the adult system is myopic. 37 9 Since a youth, even if con-
victed, is released from custody at some future date, it has been argued that
successful rehabilitation under the youth system is more likely to provide
greater long-term protection to the public than incarceration in an adult facil-
ity.3 80
Arguments in favour of equating protection of the public to rehabilitation
have also stressed the negative impact of adult penitentiaries upon the young
offender. According to this view, not only is the environment of the adult facility
adverse to the goal of rehabilitation due to a dearth of rehabilitative resources, 38’
but because of the impact of prison culture, criminal behaviour is entrenched in
the adult system.382 For example, Huband J.A., who delivered the judgment for
the majority in R. v. D.V, noted that the psychologist testifying at the trial
believed that the youth could be rehabilitated within the three-year maximum
376R. v. William Y., [19881 W.D.F.L. 1325, Y.O.S. 88-100 (B.C.C.A.) [cited to YO.S.].
3771bid.
371(1989), 89 N.S.R. (2d) 98 at 107, 47 C.C.C. (3d) 436 (C.A.).
379See Kirkland J. in R. v. Michael E. (No. 1), [1986] W.D.FL. 608, Y.O.S. 86-023 (Ont. Prov.
Ct. (Far. Div.)). This broad interpretation of protection was also emphasized by the Alberta Youth
Court in R. v. B.R.C., [1984] A.W.L.D. 1025 (Alta. Pro. Ct. (Yth. Div.)).
380Some judges have also expressed concern about the potential physical danger to youths who
are placed in adult custodial facilities. For example, in R. v. WaH., supra note 374, the Ontario
Court of Appeal refused to transfer six youths who were charged with forcible confinement and
sexual assault of a 14-year-old girl. The court considered the evidence of a witness from Correc-
tions Canada who testified about the conditions of adult penitentiaries at the transfer hearing. In
his testimony the witness stated that “there was a real risk of physical danger, a risk of becoming
involved in involuntary homosexual activities and the likelihood of the young person having to
accept the codes of behaviour in living in such a place” (ibid. at 374). The court concluded that
“it would be a rare case in which it would be in the interests of either the public or the accused
to impose such a sentence” (ibid.).
38 1See Canadian Criminology and Corrections Association, “Young Persons in Conflict with the
Law: A Report of the Solicitor General’s Committee on Proposals for New Legislation to Replace
the Juvenile Delinquents Act” (Ottawa: Canadian Criminology and Corrections Association, 1976)
at 9.
382Legislative Committee on Bill C-58, supra note 321 at 5:14.
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McGILL LAW JOURNAL
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period of detention available under the YOA.3 s3 The court also found that the
report prepared on the youth was “favourable,” despite previous convictions in
youth court. Huband J.A. concluded: “The needs of the accused would not be
met by a destructive incarceration in an adult penitentiary for ten years. Socie-
ty’s interests would not be best served by the probable creation of a hardened
criminal.””38 Focusing on the goal of providing long-term protection to the pub-
lic, the majority conceived of the juvenile justice system as one that is offender-
based and geared toward the reform of young persons. Rather than creating a
dichotomy between the “interests of society” and the “needs of the young per-
son,” Huband J.A. attempted to reconcile these two concepts by defining the
“interest of society” in terms of the long-term rehabilitation of the young per-
son.
In a similar vein, Leschied of the London Family Court Clinic has argued
that longer sentences do not improve community protection; rather, he stresses
that it is the quality of intervention and not simply the length of time of incar-
ceration that will serve to reduce recidivism.”5 In his view, those who advocate
using transfer as a mechanism to gain access to longer sentences in the adult
system, and thereby ensure public protection, have been misled by the media in
its reporting of the incidence of violent’crimes committed by young offenders.3
6
1
Moreover, Leschied explains, this approach is not justified because studies have
shown that an increase in the severity of sentences may not have a deterrent
effect upon violent youth.3″7
Outcomes of Special Needs Youth (London: Family Court Clinic, 1989) at 5-8.
3 3Supra note 367.
3 41bid. at 249.
3SSLegislative Committee on Bill C-58, supra note 321 at 5:13. See also A. Leschied, Assessing
3
86fhjs misperception has also been recognized in the context of adult sentencing in a study con-
ducted by Doob and Roberts (A. Doob & J. Roberts, “An Analysis of the Public’s View of Sen-
tencing” Report to the Department of Justice (Ottawa: Supply and Services Canada, 1983)). Their
study showed that the Canadian public overestimates the proportion of crime that involves vio-
lence, as well as the recidivism rates of offenders. At the root of this misperception is the fact that
the public’s view of crime and the criminal justice system is shaped by the news media:
When thinking about crime, people summon to mind images of violent offenders, of
repeat offenders, and of an identifiable group of people who, once they commit an
offence, will come back into the criminal justice system over and over again. It is,
therefore, not surprising, given this image of crime, that people desire more punitive
sanctions … [I]f it is perceived that communities can do little themselves to avoid
crime, then members of the public are left with three potentially useful functions of
incapacitation, and general and individual deterrence [emphasis added]
sentencing –
(ibid. at 18).
Their study revealed, however, that when members of the public were given access to more com-
plete information about sentencing, they were more likely to be content with the decisions made
by trial judges. There is no reason to believe that public perceptions of leniency do not apply
equally in the context of young offenders. As reported by W. Meloff & R.A. Silverman, “Canadian
Kids Who Kill” (1992) 34 Can. J. of Criminology 15, a great deal of publicity has been given to,
cases where youths have been charged with homicide under the YOA. Implied by these reports is
that youths who kill are incorrigible criminals and that the incidence of random youth violence is
sharply increasing in Canada. The authors suggest, however, that the threat posed to “public” safety
should be questioned because the evidence reveals that most youth homicides involve a relative
or acquaintance of the perpetrator.
3STLegislative Committee on Bill C-58, supra note.321 at 5:10-14. In fact, Leschied argues that
1993]
NOTE
1017
Given the ambiguous language in section 16, it is evident that the manner
in which a judge chooses to interpret that provision will clearly depend upon his
or her view of how the “protection of society” is best secured: through longer
periods of incarceration for young offenders in the adult system, or through the
long-term rehabilitation of the youth as achieved in treatment-oriented youth
facilities. Therefore, while the YOA has purported to limit judicial discretion in
the juvenile system, and to provide procedural protection against arbitrary and
unpredictable decision-making, allowing these two goals to coexist in the lan-
guage of the legislation has thwarted any narrowing of the scope of judicial dis-
cretion in the transfer context. Because of the serious implications of a transfer
order and the consequent need for consistency in the application of the transfer
provision, it is imperative that Parliament resolve these contradictions by cir-
cumscribing the scope of judicial discretion. Ultimately this requires a clear
articulation of the purpose of transfer, as well as an enumeration of criteria
which are consistent with that purpose.
At present, subsection 16(2) sets out a wide variety of factors that the youth
court “shall take into account” in an application for transfer.”‘ 8 Subsection 16(2)
serves to expand the considerations relevant to transfer under subsection 16(1).
Not only does the Act fail to provide any guidance as to how these considera-
tions are to be prioritized, but paragraph 16(2)(f) states that the court may also
19 The mingling of consider-
refer to “any other” factor that it deems relevant.3
the evidence has shown that with a more severe penalty, there is a slightly increased chance of
recidivism.
3 88S. 16(2) provides:
16.(2) In considering an application under subsection (1) in respect of a young person,
a youth court shall take into account
(a) the seriousness of the alleged offence and the circumstances in which it
was allegedly committed;
(b) the age, maturity, character and background of the young person and any
record or summary of previous findings of delinquency under the Juvenile
Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or
previous findings of guilt under this Act or any other Act of Parliament or
any regulation made thereunder,
(c) the adequacy of this Act, and the adequacy of the Criminal Code or any
other Act of Parliament that would apply in respect of the young person if
an order were made under this section, to meet the circumstances of the
case;
(d) the availability of treatment or correctional resources;
(e) any representations made to the court by or on behalf of the young person
or by the Attorney General or his agent; and
(f) any other factors that the court considers relevant.
389Because the courts have held that the factors set out in s. 16(2) are “directory,” not “manda-
tory P it is left to the judge at a transfer hearing to determine the priority and weight to be given
to each. See e.g. R. v. F. (1985), 20 C.C.C. (3d) 334 at 357-58 (Ont. H.C.); R. v. A.JM. (1986),
73 A.R. 52 at 56, 29 C.C.C. (3d) 418 (Q.B.); R. v. S.C.M. (1990), 67 Man. R. (2d) 181 at 182
(Q.B.). The Supreme Court of Canada has also declined to ascribe any priority to the factors in
s. 16(2). McLachlin J., writing for the majority in R. v. S-H.M. (1989), 71 C.R. (3d) 257 at 305,
50 C.C.C. (3d) 503 (S.C.C.) [hereinafter S-H.M. cited to C.R.], acknowledged that “some factors
will assume greater importance than others, depending on the nature of the case and the viewpoint
of the tribunal in question.” As such, the Supreme Court has effectively endorsed the broad judicial
discretion which exists at a transfer hearing.
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[Vol. 38
ations in subsection 16(2) pertaining to the youth’s treatment prognosis, and to
an assessment of dangerousness, further highlights the tension between the pol-
icy goals that the provisions relating to transfer aim to achieve. This is signif-
icant because the emphasis which a judge chooses to place upon one factor over
another will also indicate what the court considers to be the rationale for a trans-
fer order generally. For example, where emphasis is placed on the seriousness
of the alleged offence, it is more likely that a youth will be transferred to the
ordinary court, and that, in ordering the youth to be transferred, the court will
focus upon indicators of “dangerousness” over indicators of “treatability.”39 On
the other hand, where priority is given to the availability of treatment resources,
and to the individual’s amenability to treatment, the inquiry shifts away from an
assessment of “dangerousness” toward an evaluation of the accused’s prospects
for rehabilitation within the juvenile system.”9 ‘
In order to give more guidance to a judge at a transfer hearing it is there-
fore necessary to clarify the standard for transfer as set out in subsection 16(1)
and to limit the criteria in subsection 16(2) to those considerations which are
consistent with the transfer test. Until the tension between protection as rehabil-
itation and protection as incarceration is resolved, the language of the test may
be manipulated, and the criteria set out in subsection 16(2) may be used in a
manner which will support virtually any position that the court wishes to for-
ward. Unfortunately, the most recent amendments to section 16 have not
resolved this ambiguity.
b. Bill C-12
Bill C-12 received Royal Assent on May 15, 1992, setting out a two-part
test in section 16(1.1) to determine whether a youth should be transferred to the
ordinary court.392 At the first stage of the test, Bill C-12 directs the court to con-
390The Manitoba courts, for example, have taken this approach in a number of cases. In R. v.
C.R.M. (1987), 46 Man. R. (2d) 315 (C.A.), the transfer order was confirmed due to the seriousness
of the alleged offence (first degree murder) even though the young person had no prior record. See
also R. v. S.C.M. (1990), 67 Man. R. (2d) 181 (Q.B.); R. v. F.D.M. (1987), 45 Man. R. (2d) 24,
33 C.C.C. (3d) 116 (C.A.).
391See e.g. Nathalie B. v. R. (1985), 21 C.C.C. (3d) 37 (Que. C.A.), where the Quebec Court of
Appeal refused the Crown’s application for transfer of a 17-year-old girl charged with murder on
the grounds that she could be effectively rehabilitated within the youth system. Similarly, in R. v.
E.E.H. (C.A.), supra note 366 at 307, the Saskatchewan Court of Appeal reversed the decision to
transfer and re-affirmed the ruling of the trial judge that “s. 16 is designed for another kind of
young person: one who is hardened generally, one who tends to be incorrigible, one for whom most
of the resources and avenues within the social service system and the young offenders system have
been used but without much avail.”
39 2Bill C-12 was passed as An Act to Amend the Young Offenders Act and the Criminal Code,
S.C. 1992, c. 11.
S. 16(1.1) states:
In making the determination referred to in subsection (1), the youth court shall consider
the interest of society, which includes the objectives of affording protection to the pub-
lic and rehabilitation of the young person, and determine whether those objectives can
be reconciled by the youth remaining under the jurisdiction of the youth court, and if
the court is of the opinion that those objectives cannot be so reconciled, protection of
the public shall be paramount and the court shall order that the young person be pro-
19931
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1019
sider the “interest of society.” The “interest of society” is then defined as includ-
ing the objectives of affording “protection to the public” and “rehabilitation of
the young person.” If these two objectives can be reconciled within the jurisdic-
tion of the youth court then the young person shall not be transferred. However,
if they cannot be so reconciled, then the “protection of the public” shall be par-
amount. While it is acknowledged that in some instances these two objectives
(protection and rehabilitation) may be achieved concurrently,393 the manner in
which subsection 16 (1.1) is drafted suggests that there is no identity between
“protection of the public” and the “rehabilitation of the young person.” Instead,
the door is left open to two potentially conflicting interpretations. 4 Thus, the
standard for transfer remains dependant on the court’s view of how the “protec-
tion of society” is best achieved. The test set out in subsection 16(1.1) also
leaves open the question of whether other considerations such as general deter-
rence may be relevant to transfer, since the “interest of society” only includes
the objectives discussed above. Furthermore, there has been no narrowing of the
criteria in subsection 16(2) which may be considered at a transfer hearing.311
Commentaries on Bill C-12 reinforce the argument that there is still a great
deal of uncertainty as to the purpose and proper interpretation of the transfer
provision. The analyses of Bala and Manfredi indicate that the tension between
securing protection through rehabilitation and protection through incapacitation
remains unresolved by the recent amendments. While both authors agree that
“protection of the public” shall take precedence under Bill C-12 where society’s
interest in protection and the rehabilitation of the youth conflict, Manfredi com-
ments that “as in the United States, the purpose of this change is to ensure that
… the transfer decision is driven by public safety concerns rather than rehabil-
itative considerations. 396 Conversely, Bala argues that Parliament did not intend
to “lower” the test for transfer” and that “the new test continues to recognize
the importance of rehabilitation, and may be interpreted in a fashion that does
not significantly affect the transfer rate. ‘398
ceeded against in ordinary court in accordance with the law ordinarily applicable to an
adult charged with the offence.
393This type of reasoning would apply where a youth needs to be dealt with in the harsher atmo-
sphere of an adult penitentiary for rehabilitation purposes, or where the treatment facilities avail-
able in the adult system are better suited to the individual’s needs or level of maturity.
394This problem is not new. Referring to the test set out in s. 9 of the JDA, Jane Morley commented
that not only was the interpretation of the test highly dependent on a judge’s own concept of indi-
vidual and societal good, but it was also problematic in that the two criteria (good of the child and
interest of the community) were at least potentially incompatible (Morley, supra note 88 at 299).
Contra this view: commenting on the new test in s. 16(1.1), Mr. Terence Wade, speaking on behalf
of the Canadian Bar Association, stated that the new test “makes more explicit which of those criteria
is to be paramount in the event of an inability to come to a conclusion when the two of them are
weighed” (Legislative Committee on Bill C-58, supra note 321 at 3:12 (16 October 1990)).
395The problems identified above with respect to the criteria in s. 16(2) were recognized in the
Department of Justice’s Consultation Document of 1989, but were not addressed in Bill C-12
(Department of Justice, The Young Offenders Act: Proposals for Reform (Ottawa: Queen’s Printer,
July 1989) at 29 [hereinafter Consultation Document of 1989]).
39 6Manfredi, supra note 171 at 55.
397N. Bala, “Dealing with Violent Young Offenders: Transfer to Adult Court and Bill C-58”
(1990) 9 Can. J. Fain. L. 11 at 26.
39 1Ibid. at 35.
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How can we explain the continued ambivalence that is expressed in section
16? One perhaps cynical view is that the test was expressly formulated so as to
accommodate a multiplicity of perspectives. However, the continued coexist-
ence of these two approaches may be more accurately explained by the fact that
the reforms were not specifically directed at resolving the ambiguities in section
16 of the YOA. Instead, looking at inter-provincial differences in the transfer
rate,399 commentators
and judges4″‘ focused upon the inflexibility of sentenc-
ing options in the youth and adult systems. Particularly where murder was
charged, critics cited the “stark choice” between a three-year maximum dispo-
sition under the YOA and the minimum term of twenty-five years without parole
under the Criminal Code as the reason for significant inter-provincial variations
in the transfer rate. As explained by Bala and Stuart:
Interprovincial variation in the application of section 16 is itself symptomatic of
a more profound problem, which can be reduced only by legislative action. As
presently drafted, section 16 offers the courts too stark a choice. This is most
apparent in the case of first degree murder. … Faced with this kind of choice, it
is not surprising that some judges are choosing to transfer cases which other
judges would not.4
0
2
It was on this theory that Parliament introduced Bill C-12 to deal with the
disparity problem by bridging the gap between dispositions ordered under the
YOA and the sentencing provisions of the Criminal Code. First, the maximum
custodial sentence under the YOA was increased from three years to five years
less one day (subsection 20(4)). Second, the parole period for youths convicted
of culpable homicide in adult court was reduced from a minimum twenty-five
years to a minimum of ten years (s. 744.1). Third, the amendments provided that
even if a youth was transferred to adult court, he could be ordered to serve his
sentence in a youth facility until the age of twenty (subsection 16.1(7)). This
procedure, provided for under section 16.2, would involve a hearing at which
399Under the YOA Manitoba makes the greatest use of the transfer provision (1.05% of all char-
ges). The other provinces and territories have used the transfer provision to a lesser degree: Quebec
(0.68%), Newfoundland (0.53%), Alberta (0.52%), Nova Scotia (0.45%), B.C. (0.19%), Yukon
(0.16%), Saskatchewan (0.04%), New Brunswick (0.04%), P.E.I. and the Northwest Territories
(0.00%). No figures for Ontario transfer rates were available in this study conducted by the Cana-
dian Centre for Justice Statistics (Consultation Document of 1989, supra note 395 at ii).
40()As noted in the Consultation Document of 1989, ibid. at 3, the stark choice with which judges
were faced resulted in a situation where, in the experience of at least one jurisdiction, there did
not appear to be a factual case in which the courts would transfer a youth to the ordinary court.
See also N. Bala & H. Lilies, “Transfer to Adult Court: The Most Serious Disposition” in L. Beau-
lieu, ed., supra note 171, 119; N. Bala & D. Stuart, “Transfer to Adult Court: Two Views as to
Parliament’s Best Response” (1989) 69 C.R. (3d) 172; Bala, supra note 397; Manfredi, supra note
171.
401In R. v. MA.Z. (1987), 19 O.A.C. 67, 35 C.C.C. (3d) 144 (C.A.) [cited to O.A.C.], leave to
appeal den’d (1987), 35 C.C.C. (3d) 144n (S.C.C.), Mackinnon A.C.LO. expressed the need for
legislative reform as follows:
Put bluntly, three years for murder appears totally inadequate to express society’s revul-
sion for and repudiation of this most heinous of crimes. The mandatory sentence on
conviction for first degree murder (with which the appellant is charged) under the
Criminal Code is 25 years before being eligible for parole … This is obviously an area
for consideration and possible amendment by those responsible for the Act (ibid. at 79).
402Bala & Stuart, supra note 400 at 173.
1993]
NOTE
1021
evidence could be presented. As well, a review of the decision was provided for
under subsection 16.2(4). It is also significant that almost all of the changes
under Bill C-12 were directed specifically at addressing the disparity problem
where murder is charged, a factor which may have further distorted the formu-
lation of the amended provisions.
However, advancing this explanation for inter-provincial disparity and
interpretative differences is somewhat misleading. While the gap between the
length of custodial dispositions in the young offender and adult systems has
been narrowed, Bill C-12 has not addressed the fundamental textual ambiva-
lence which lies at the root of the disparity issue. It is submitted that judges have
not rendered radically different decisions in similar cases because of the stark
choice between dispositional options in the youth and adult systems; they have
done so because the vague language of the test itself accommodates a multiplic-
ity of views, and as such, lends itself to many different interpretations.
Defining the proper standard for transfer therefore requires an understand-
ing of what transfer aims to achieve within the broader framework of the YOA.
Notwithstanding the reorientation in juvenile justice signalled by the passage of
the YOA, rehabilitation has continued to play a central role in defining the con-
cept of public protection, as well as the “special needs” of the young person.
Arguably, it is not surprising that judges have continued to stress rehabilitative
considerations in the absence of a clear legislative directive to alter this inter-
pretation. To some extent, section 16 represented a carry-over from section 9 of
the JDA, as revealed by the way that section 16 was drafted, and by the legis-
lative history of transfer.4’ It is also significant that the courts had been apply-
ing the JDA for nearly eighty years, perhaps making it inevitable that the oper-
ative principles under the earlier legislation would remain influential,
particularly where the YOA was ambiguous.
The linking of special needs and rehabilitation has since been explicitly
acknowledged in Bill C-12, where the phrase “needs of the young person” has
been replaced by the “rehabilitation of the young person” under subsection
16(1.1). Given the wide variety of problems associated with rehabilitation, it is
unclear why, and on what basis, Parliament has decided to reintroduce this goal
into the transfer test in subsection 16(1.1).
In abstract terms, pursuing the goal of long-term rehabilitation has an intu-
itive appeal, both with respect to addressing the needs of the youth and in the
4 03Even the language of s. 16 of the YOA closely echoed the transfer test under s. 9 of the JDA,
which read “the good of the child and the interest of the community” and which was interpreted
as meaning that a young person would not be transferred unless rehabilitation was not possible
within the juvenile system. It is also significant that this interpretation persisted throughout the
period of reform in the 1960s and 1970s, in spite of alterations to the drafting of the test itself.
Moreover, even though the test was expressly altered at third reading of Bill C-61, placing the
“interest of society” before the “needs of the young person,” the parliamentary debates which sur-
rounded the reforms suggest that this shift in emphasis had little to do with a reconsideration of
the proper standard for transfer. Rather, it resulted from a need to respond to concerns raised about
the uniform maximum age of juvenile court jurisdiction which was being expedited by Parliament.
(See “Fourth Report of the Standing Committee on Justice and Legal Affairs” in House of Com-
mons Journals (23 April 1982) at 4746; Standing Committee, supra note 162 at 61:10 (9 February
1982).
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[Vol. 38
interest of providing protection to society. Yet, at the same time, this approach
entails a wide grant of judicial discretion which is necessary to determine the
appropriate response to the individual offender. It is for this reason that judges
under the JDA were empowered to increase the degree of intervention according
to a young person’s treatment needs.404 However, in light of the historical devel-
opment of the YOA, the stated objectives of the legislation, and the limitations
on judges to actually determine where a youth will serve out his or her dispo-
sition, placing emphasis on rehabilitative goals in the transfer context is prob-
lematic. In fact, the YOA was implemented in large measure to respond to the
abuses that resulted from this broad grant of judicial discretion. It is precisely
because rehabilitation is not compatible with other objectives of the Act such as
ensuring the determinacy of dispositions, extending enhanced procedural pro-
tections to young persons, and creating a direct link between dispositions and
criminal offences, that giving priority to rehabilitative concerns must be ques-
tioned.”‘
Moreover, a closer examination of the analogy that is drawn between reha-
bilitation and the protection of society reveals that it is premised on a number
of flawed assumptions. First, this equation assumes that treatment programs
can, if properly developed, address the problem of recidivism. As discussed in
the first part of this paper, a substantial body of evidence has shown that reha-
bilitation has not been effective in achieving this goal. Indeed, the YOA was
implemented partly in reaction to the perceived failure of rehabilitation.4″ Sec-
ond, if the long-term rehabilitation of the youth is a primary concern under sec-
tion 16, then the process which allows for a review of the decision to transfer
is extremely problematic. This is because the systemic delays associated with
this formal procedure are adverse to the goal of rehabilitation.’ As explained
4(4See generally Morley, supra note 88; M.M. Bowker, “Waiver of Juveniles to Adult Court
under the Juvenile Delinquents Act: Applicability of Principles to Young Offenders Act” (1987)
29 Crim L.Q. 368; G. Parker, “Juvenile Delinquency: Transfer of Juvenile Cases to Adult Courts:
Factors to Be Considered Under the Juvenile Delinquents Act” (1970) 49 Can. Bar Rev. 336; R.C.
Topp, “A Concept of Diminished Responsibility for Canadian Criminal Law” (1975) 33 U.T. Fac.
L. Rev. 205.
405ln the transfer context, a further criticism may be raised. An assessment of the accused’s pros-
pects for reform at a transfer hearing may prove to be paradoxical where the desire to rehabilitate
the young offender requires that the youth be removed from the juvenile system so that his needs
can be adequately addressed. For example, in Re Young Person (1987), 3 W.C.B. (2d) 257, [1988]
W.D.F.L. 160 (Nfld. S.C.), the accused was transferred to the ordinary court because expert evi-
dence at the transfer hearing showed that if the youth was responsive to treatment, the duration of
the treatment program would probably exceed the three-year maximum of custody available under
the YOA. Similarly, in R. v. J.TJ., [1986] W.D.F.L. 366 (Man. Prov. Ct. (Fam. Div.)), in ordering
a youth to be transferred to the adult court, the trial judge stressed that facilities for psychiatric
treatment were only available in the adult system.
406See text accompanying notes 133-42.
47In R. v. S.D. (1991), 4 O.R. (3d) 225, 6 C.R. (4th) 96 (C.A.), a delay of 2 years resulted from
an application by the Crown to transfer the case to adult court. The initial application, which
resulted in an order to transfer, occupied 1 year. The further application for review took 7 months,
with the result that the matter was returned to the juvenile court. The accused made a motion for
a stay of proceedings on the grounds that there had been a violation of the accused’s right to be
tried within a reasonable time as protected by s. 11(b) of the Charter. The Ontario Court of appeal
held that tie delay was unreasonable and ordered that a stay of proceedings be entered. However,
19931
NOTE
1023
by Osborne J.A. in R. v. G.C.M.,4 “[f]or young persons, the effect of time may
be distorted. If treatment is required and is to be made part of the YOA dispo-
sition process, it is best begun with as little delay as is possible.”‘ The amend-
ments to the Act fail to address this problem. Although one level of appeal has
been removed by Bill C-12, another level of decision-making has been added.
At the first stage, the court must decide under subsection 16(1.1) whether the
youth court is the appropriate forum to hear the case. At the second stage, once
transfer has been ordered and the case has been adjudicated in the adult court,
the adult court must determine under section 16.2 the appropriate place of cus-
tody.410 Subsection 16.2(4) further provides for a review of the decision as to the
place of custody. Not only does the amendment in subsection 16.2 add another
level of decision-making, but the effect of Bill C-12 is to partially remove the
question of custody from the courtat a transfer hearing.4” By providing a mech-
on appeal to the Supreme Court of Canada, this decision was reversed. The Supreme Court
affirmed the decision at first instance finding that the “delay complained of was not unreasonable
..[The time required-for an application for transfer to adult court and appeals relating thereto is
part of the inherent time requirements of a case under the Young Offenders Act. In this case … the
application could not have reasonably proceeded faster” (R. v. S.D. (1992), 72 C.C.C. (3d) 575 at
576, 14 C.R. (4th) 223 (S.C.C.)).
408(1991), 3 O.R. (3d) 223, 6 C.R. (4th) 55 (C.A.) [cited to O.R.].
49Ibid. at 230.
410S. 16.2:
(1) Notwithstanding anything in this or any Act of Parliament, where a young person
who is proceeded against in ordinary court as a result of an order made under sec-
tion 16 is convicted and sentenced to imprisonment, the court shall, after affording
the young person, the parents of the young person, the Attorney General, the pro-
vincial director and representatives of the provincial and federal correctional sys-
tems an opportunity to be heard, order that the young person serve any portion of
the imprisonment in
(a) a place of custody for young persons separate and apart from any adult who
is detained or held in custody;
(b) a provincial correctional facility for adults; or
(c) where the sentence is for two years or more, a penitentiary.
(2) In making an order under subsection (1), the court shall take into account
(a) the safety of the young person;
(b) the safety of the public;
(c) the young person’s accessibility to family;
(d) the safety of other young persons if the young person were to be held in cus-
tody’in a place of custody for young persons;
(e) whether the young person would have a detrimental influence on other young
persons if the young person were to be held in a place of custody for young
persons;
(t) the young person’s level of maturity;
(g) the availability and suitability of treatment, educational and other resources
that would be provided to a young person in a place of custody for young per-
sons and in a place of custody for adults;
(h) the young person’s prior experiences while in detention or custody;
(i) the recommendations of the provincial director and representatives of the pro-
vincial and federal correctional facilities; and
(J) any other factor the court considers relevant.
S. 16.2(4) also provides for a review of the decision as to the place of custody.
411The introduction of s. 16.2 responds to criticisms relating to the dangers of placing youths in
the same facilities as adult offenders. Under the YOA as originally drafted, no similar mechanism
existed. While there was a provision in s. 733 of the Criminal Code which allowed for young per-
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McGILL LAW JOURNAL
[Vol. 38
anism whereby a youth may request to serve his custodial sentence in a youth
facility even after transfer has been ordered and the youth has been convicted
under the Criminal Code, section 16.2 effectively deprives the judge at the
transfer hearing of any control over the place of custody. It is therefore difficult
to see how a judge can legitimately order transfer with a view to the treatment
needs of the offender, in the absence of any control over the place of custody
or the type of treatment that should be ordered.
Third, requiring the courts to determine a youth’s amenability to treatment
presupposes that judges are capable of making these types of predictive deter-
minations. It is for this reason that the court is required on a transfer application
to consider a pre-disposition report, and may also order that a medical or psy-
chological report be prepared. However, commenting upon the waiver provi-
sions in the United States, Feld forcefully challenges this assumption. 412 Point-
ing to the absence of reliable tools to predict future criminal behaviour, he states
that: “All of the problems associated with the validity and reliability of psycho-
logical or psychiatric classification and diagnosis are compounded when the
issues involve troublesome legal and social policy issues rather than scientific
ones.”413 In other words, even if judicial discretion is circumscribed, requiring
judges to evaluate the future behaviour of alleged offenders will inevitably
result in interpretative inconsistencies because section 16 of the YOA allocates
to the judiciary a role for which it is ill-equipped.
It is significant, however, that Feld’s criticism applies equally to predicting
the future “dangerousness” of the accused.14 Therefore, if the aim of future
reforms is to narrow the scope of judicial discretion, and to get to the root of
variations in the application of the transfer provision, it is submitted that the
inquiry on a transfer application must shift away from an offender-based deter-
mination of future behaviour to a more objective evaluation of offence-based
criteria.
This is the direction that is being taken in a number of American states
where, as Manfredi notes, there has been an “attempt to create a more direct link
between the substance of dispositions and specific acts., 411 Manfredi attributes
this shift in emphasis to two concerns, both of which are parallelled in the Cana-
dian context: “The impetus for this development has been two-fold: (1) the
desire to control discretionary decisionmaking and dispositional discrepancies;
and (2) the realization that the failure to establish a relationship between acts
sons sentenced in the adult system to be placed in youth facilities with the consent of the provincial
director, this provision was largely ineffective. See R. v. Timothy V (20 April 1990), (Ont. S.C.)
[unreported]; Legislative Committee on Bill C-58, supra note 321 at 4:9 if.
4 12B.C. Feld, “Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling
the ‘Rehabilitative Ideal”‘ (1981) 65 Minn. L.R. 167.
4131bid. at 178-79.
4141n addition, Feld states that the “lack of reliable psychological or clinical indicators to predict
dangerousness almost invariably results in over-predicting and erroneously classifying as danger-
ous many young offenders who ultimately do not commit further offenses” (ibid. at 179).
4 15Manfredi, supra note 171 at 54.
19931
NOTE
1025
and their consequences undermines the deterrent value of juvenile court inter-
vention. ‘ 416
In keeping with this approach, we believe that the considerations which are
relevant to transfer must be narrowed to those that are consistent with an
offence-based rationale-for transfer precisely because an offender-based assess-
ment is not sufficiently determinate. In particular, an offence-based approach
gives priority to such criteria as: the seriousness of the alleged current offence,
the circumstances surrounding the alleged offence, whether the offence was
committed in an aggressive, violent or premeditated manner, and the accused’s
previous convictions under the YOA. The aim of these suggested reforms is not
only to clarify the transfer test, but also to narrow the category of offenders for
whom transfer is available. Contrary to recent interpretations of section 16
which suggest that transfer is not an exceptional remedy,4 7 we believe that sec-
tion 16 should be regarded as a mechanism which links dispositions more
directly to specific acts, and which applies only to a category of violent young
offenders who could not be held sufficiently accountable for their wrongful
actions in the juvenile system.
In our view, the serious implications of a transfer order for the accused
mandate that the Crown be required to meet a higher threshold for transfer than
is presently required. For instance, the category of offenders who may be trans-
ferred at the Crown’s request should be limited by more than the requirement
that the youth be fourteen years of age and that an indictable offence be charged.
This is supported by the fact that more serious charges may be brought by the
prosecution in order to lay the groundwork for a transfer order.418 The scope of
application of section 16 could be limited further to indictable offences causing
bodily harm and/or to offences committed with the use of a firearm. Along these
lines, it is’also submitted that transfer should not be available to a juvenile who
wishes to escape the possibility of a longer custodial sentence, or a harsher dis-
position in the youth system. At present, it is open to a youth to use transfer as
a mechanism to escape responsibility for wrongdoing because adult courts may
treat defendants transferred from youth courts as first time offenders.4 9 These
recommendations are consistent with the approach which has been taken in a
number of American states, where a prior felony conviction is required for
transfer.4 In this way, transfer functions as a mechanism which subjects a lim-
ited range of offenders to more punitive treatment in the adult system, without
4 16 1bid.
4 17McLachlin J., writing for the majority of the Supreme Court of Canada on two transfer
appeals from Alberta, SI-fM. (supra note 389) and R. v. J.EL. ((1989), 71 C.R. (3d) 306, 50
C.C.C. (3d) 385 (S.C.C.)), stated that:
[Mt would be wrong as a matter of law to say that the applicant must meet a heavy onus.
That term carries with it the connotation that only in exceptional or very clear cases
should an order for transfer be made … Parliament having failed to so stipulate that the
case for transfer must be “exceptional,” or “clear,” or “necessary,” it is not for this court
to do so (S.-.M., ibid. at 301-02).
4 1SReport, supra note 35 at 83.
4 19See Manfredi, supra note 171 at 57.
42These states are Colorado, Connecticut, Florida, Kansas, Rhode Island and Ohio (ibid. at 56).
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REVUE DE DROITDE McGILL
[Vol. 38
altering the response of the juvenile system to offenders who may be dealt with
within the framework of the YOA.
c. The Transfer Hearing
Redefining the transfer test as we suggest would have two interrelated con-
sequences in relation to the application of section 16. First, in making clear that
“protection of society” should not be interpreted to necessitate a consideration
of rehabilitative concerns, the proposed offence-based transfer test should nar-
row the potential class of young offenders being transferred. This simply under-
scores the serious and exceptional nature of a transfer order. As such the second
consequence, and corollary of redefining the test, is the need for enhanced pro-
cedural protections during a transfer hearing. Given the serious implications of
a transfer to adult court, we will argue that the continuing use of relaxed adjec-
tival rules under the YOA cannot be sustained.
Under the JDA, the courts characterized the transfer hearing as an “admin-
istrative,” rather than a “judicial” proceeding.42″ ‘ On the basis of this character-
ization, they held that the strict rules of evidence did not apply.4″ Therefore,
hearsay and unswom testimony could be entered into evidence. This character-
ization was subsequently adopted by the courts under the YOA. For example, in
R. v. N.B.,423 Beauregard J.A. held that the youth court judge did not err in ask-
ing leading questions to witnesses because she enjoyed a wide discretion given
that the proceeding was “not a true judicial proceeding.” Similarly, in R. v.
J.W.,424 the youth court judge noted that, in considering the factors enumetated
in subsection 16(2), he “is not engaged in the traditional judicial process of fact
finding or determining issues, but rather is required to make more in the nature
of an administrative decision.” Moreover, it is also clear that the courts still
allow for a relaxation of the rules of evidence.4’ For example, in R. v. W,4 2 6 the
British Columbia Supreme Court held that an unswom statement written by a
third party and submitted in the evidence of a probation officer was admissible.
4211n R. v. Arbuckle, [1967] 3 C.C.C. 380,59 W.W.R. 605 (B.C.C.A.) [hereinafterArbuckle cited
to C.C.C.], for example, the British Columbia Court of Appeal stated that “the function of a Juve-
nile Court Judge under s. 9(1) is not judicial in the strict sense of exercising judicial power, but
is administrative and ministerial” (ibid. at 386). The Court engaged in an analysis of the provisions
of the JDA, pointing to the fact that the purpose of the Act was to treat the youth as a person in
need of support and guidance, and not as a criminal (ss. 3(2), 38), that the proceedings were to be
informal (s. 17), and that one needed “special grounds” to appeal a decision of a juvenile court
judge (s. 37(1)). Moreover, under s. 9(1), an application for transfer required an investigation into
the character and background of the youth, as transfer could only be ordered if the court was of
the opinion that the good of the child and the interest of the community demanded it. Thus, the
Court concluded, while the judge must “act judicially in the sense of proceeding fairly and openly”
(ibid.), the purpose of the JDA was the welfare of the child. Hence, the function of the juvenile
court judge was administrative.
4 2 2I% Arbuckle, ibid., the Court held that hearsay evidence, in the form of unsworn statements
of Crown counsel and the probation officer, was admissible.
423(1985), 21 C.C.C. (3d) 374 at 379 (Que. C.A.).
424(1989), 99 A.R. 257 at 258 (Prov. Ct. (Yth. Div.)).
4
25See e.g. R. v. W. (1985), 22 C.C.C. (3d) 269 (B.C.S.C.); R. v. WY. (1988), 4 W.C.B. (2d) 267
(B.C.C.A.); R. v. S.R. (1991), 1 O.R. (3d) 785 (C.A.); R. v. S.1H. (1986), 76 N.S.R. (2d) 163, 189
AP.R. 163 (S.C.(T.D.)).
4261bid.
1993]
NOTE
1027
In R. v. W.Y.,427 the British Columbia Court of Appeal agreed with the trial judge
that evidence could be given as to the activities of youth gangs and the accu-
sed’s involvement with such gangs.
It is submitted, however, that defining the nature of the transfer hearing as
administrative or ministerial, and thereby allowing for a relaxation of proce-
dural and evidentiary rules, is not appropriate under the YOA. This is because
the enactment of the YOA represented a movement towards a more legalistic
framework than existed under the JDA. As noted by Bala and Kirvan, “the YOA
is unmistakably criminal law, not child-welfare legislation.”‘ Consequently,
the discretion of the youth court judge is much more structured under the YOA.
For example, the judge is required to provide reasons for his or her decision
under subsection 16(5), the criteria to be considered are enumerated in subsec-
tion 16(2), and a statutory right of review now exists. Given the focus of the
YOA, one can no longer describe the hearing as administrative, which suggests
informality. As one author has noted: “The thrust of the [YOA] is away from
informal administrative type procedures and towards formal legal judicial pro-
ceedings. It is incumbent upon counsel appearing in Youth Court to see that the
nature of the transfer hearing evolves in accordance with the new Act.”429
Defining the hearing as anything less than judicial is also inconsistent with
the procedural rights accorded to the accused young person. The right to be
heard includes the right to call evidence, to make submissions, and to cross-
examine witnesses. The youth has the right to cross-examine the maker of both
the pre-disposition report and the medical or psychological assessment. Thus,
while the procedures in youth court may still be perceived as less formal than
those in ordinary court,43 the transfer hearing is very much adversarial. As one
court has stated:
[I]t is necessary to consider just what kind of judicial proceeding should be
employed where transfer is being considered … YOA must be looked upon as a
remedial statute involving young persons and the criminal law. That YOA followed
the proclamation of the Charter surely is not an accident in history. I conclude that
a transfer hearing is a unique proceeding which should be conducted as a judicial
proceeding, that is to say, in an impartial fashion in accordance with the rules of
natural justice.431
Given that the hearing should be viewed as a judicial proceeding, and the
rules of natural justice must accordingly be observed, one must necessarily con-
sider what rules of evidence are commensurate with a judicial hearing. The YOA
itself authorizes the acceptance of hearsay evidence. Under subsection 16(3) the
youth court is required to consider a pre-disposition report in a transfer appli-
cation. Given the- type of information contained in such a report, it is inevitable
that it will contain hearsay evidence.432 In addition, as stated in paragraph
13(1)(e), the court can avail itself of a medical or psychological report, without
427Supra note 425.
421N. Bala & M.-A. Kirvan, “The Statute: Its Principles and Provisions and their Interpretation
by the Courts” in Leschied, Jaffe & Willis, eds., supra note 3, 71 at 74.
429 B. Dunn, “Transfers to Adult Court: The Juvenile Offender” (1984) 4:4 Crown C. Rev. 20.
430 R. v. S.H.M., supra note 389 at 301-04.
431 R. v. S.A.F. (1990), 104 A.R. 283 at 287 (Prov. Ct. (Yth. Div.)).
432 See YOA, s. 14(2).
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McGILL LAW JOURNAL
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the young person’s consent, where it “has reasonable grounds to believe that the
young person may be suffering from a physical or mental illness or disorder”
and it believes that such a report “might be helpful” in rendering its decision.
The rationale for allowing the youth court judge to receive these reports
into evidence is that the effectiveness of transfer requires an informed decision
based on all facts relevant to the needs of a young person and his or her potential
for rehabilitation. Indeed, the 1965 Report433 recommended that the judge be
authorized to order a medical or psychological examination because such
authorization “is necessary if the judge is to make an adequate determination in
terms of … treatment ……3I Bala and Kirvan also point out that a pre-disposition
report and a medical or psychological assessment allow a court to “better learn
of the needs of the young person.” 5 However, the use of the report for this pur-
pose may at the same time create a tension with another “need” of young per-
sons: due process.436
An excerpt from the 1982 House of Commons debates on Bill C-61’
illus-
trates how the objectives of due process and an appropriate assessment of the
youth based on all the relevant facts are difficult to reconcile. In its submission
to the Standing Committee on Justice and Legal Affairs in 1982, the Canadian
Bar Association recommended that statements made by young persons during
the course of the preparation of the pre-disposition report should not be made
available to the judge at the transfer hearing in order to ensure that prejudicial
statements made by the youth not be considered prior to adjudication. 43 ‘ A pro-
posal was therefore made in the debates to amend clause 14(10) of Bill C-61
such that section 16 would be deleted from the clause which read as follows:
(10) No statement made by a young person in the course of the preparation of a
pre-disposition report in respect of the young person is admissible in evidence
against him in any civil or criminal proceedings except in proceedings under sec-
tion 16 or 20 or sections 28 to 32.
According to this proposal, while statements made by the youth could be con-
sidered at the disposition stage (i.e. ss. 20, 28-32), they would not be used at the
pre-adjudicative stage of transfer. The amendment was rejected by the Standing
Committee. Both Solicitor General Robert Kaplan and Judge Archambault
stated that the change was unnecessary: “[the statement] is relevant information
to help the court arrive at a decision on transfer, it does not involve guilt or inno-
cence at this point, and it does not allow any statement to go into a subsequent
trial.” ‘439 When Svend Robinson, a member of the Standing Committee, pointed
to the danger that a youth could make a statement in the report which was prej-
433Report, supra note 35.
4341bid. at 83.
435Bala & Kirvan, supra note 428 at 78.
436Under s. 3(1)(e) of the YOA, explicit recognition is given to the rights of young lPersons, guar-
anteeing the protection of young persons’ rights and freedoms, and, in particular, their “right to be
heard in the course of, and to participate in, the processes that lead to decisions that affect them.”
437Bill C-61, supra note 40.
438Standing Committee, supra note 162 at 64A:19 (24 February 1982).
4391bid. at 70:85 (30 March 1982).
1993]
NOTE
1029
udicial to his or her case, Kaplan responded by noting the difference in the phil-
osophical approaches adopted by the two men:
It is this constant difference in the position that you and I find ourselves in on the
spectrum – with my wanting an effective judicial proceeding and your pushing
beyond, I think, effectiveness for the sake of extending the rights of the accused.
… [E]very disagreement we have had in this area has been because of your want-
ing to go further toward helping the accused get off and our wanting to enable the
court to make a decision on all the facts. 4
In his reply, Robinson defined the conflict somewhat differently: “No one is
talking about helping the accused get off … [W]e are talking about a criminal
justice system which attempts to get at the facts in a way that does not prejudice
the rights of the accused.””‘
The dilemma with respect to the admissibility of evidence at the transfer
hearing is illustrated in this exchange. Allowing the transfer judge to hear cer-
tain evidence may serve to frustrate, or defeat, the legal rights accorded to
young persons under the YOA. The courts have generally held that hearsay evi-
dence is admissible, even though it may be prejudicial to the accused, because
the purpose of the transfer hearing is to determine the appropriate forum for
adjudication and not the guilt or innocence of the accused.” 2 It may be argued
that such a characterization is both unrealistic and misleading. It is generally
accepted that the Crown is not obliged at a transfer hearing to prove beyond a
reasonable doubt that the offence occurred.” 3 Nonetheless, in both R. v.
G.S.K.4″ and R. v. R.M.C..’ Huband J.A., in dissent, stated that, for the pur-
poses of an application for transfer, the court “should” assume that the Crown
will prove its case beyond a reasonable doubt and that the young person will
receive the most harsh sentence for that crime. Following this logic, although
the Crown is not obliged to prove guilt at the transfer hearing, it should have
the benefit of the court’s assumption that it can do so. In R. v. S-R., 446 the Ontario
Court of Appeal agreed that such an assumption could be made. In this case, the
Court was confronted with contradictory evidence as to the possible involve-
ment of the accused in the brutal killing of a sixteen-year-old girl. The young
person denied having participated in the murder. However, unsworn statements
which not only implicated the young person in the alleged offence but singled
him out as the main perpetrator, were entered into evidence. Goodman J.A., giv-
ing the reasons for the court, held that despite the conflicting evidence,
the youth court judge was entitledto take into account under s. 16(2)(a) of the Act,
as proven for the purposes of the application, not only that the applicant had com-
mitted first degree murder, as alleged but also the circumstances as alleged, that
is to say, the manner in which it was committed. On the basis of the evidence pre-
sented on the initial application for a transfer order he was entitled to find that the
440lbid.
44’Ibid. at 70:86.
442See text accompanying notes 421-27.
443See e.g. R. v. J.W., supra note 424.
444(1985), 22 C.C.C. (3d) 99 at 101 (Man. C.A.).
445(1987), 45 Man. R. (2d) 38 at 47, 33 C.C.C. (3d) 136 (C.A.).
446( 19 9 1), 1 O.R. (3d) 785 (C.A.) [hereinafter S.R.].
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REVUE DE DROIT DE McGILL
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applicant had participated in the torture and killing of the victim and that he had
enjoyed it. [emphasis added] 447
According to Bala and Lilies, the appropriate interpretation of S.R. and its
use of the expression “entitled to” is that a court has a discretion to decide
whether or not it will accept all the evidence of the Crown as a true statement
of the seriousness and circumstances of the offence.” A court is thus given
licence to engage in an analysis of the merits, and to make an initial determi-
nation, for the purposes of the hearing, of the guilt or innocence of the young
person. The discretion further allows the court to weigh the conflicting evidence
and evaluate its credibility.
While Bala and Lilies contend that this interpretation is “not inconsist-
ent””9 with the view that the Crown should never be expected to prove its case
beyond a reasonable doubt at a transfer hearing, they do not go so far as to argue
that it is “consistent.” Perhaps this is due to an uneasiness about such a prop-
osition. While it may indeed not be inconsistent, their interpretation has serious
implications, as it gives the Crown additional leverage in the leading of evi-
dence as to the alleged offence. On the one hand, if the Crown lacks evidence
as to the alleged offence, it is not at a disadvantage at the stage of transfer
because it is not expected to prove its case beyond a reasonable doubt.45 On the
other hand, however, if the Crown has substantial evidence linking the accused
to the alleged offence, it can introduce all of it to the court and perhaps benefit
from the court’s presumption that it is the true version of the events.
If this interpretation of S.R.4s ‘ is correct, the decision of R. v. G.S.4″2 sug-
gests that the discretiopi of a court is quite wide. In the latter case, the Ontario
Court of Appeal 53 was again confronted with conflicting evidence as to the cir-
cumstances of the alleged offence. The youth was charged with first degree
murder. In his statement to the police, he said that he had gone to the victim’s
home with a knife, intending to stab and rob him. The youth court allowed the
application for transfer and the order was confirmed on review.
The youth then applied for review of the decision and presented fresh evi-
dence in the form of a psychiatric report. The youth told the psychiatrist that he
had gone to the victim’s home and that, while there, the victim had made sexual
advances on him. A fight ensued thereafter. The youth told the psychiatrist that
he had never mentioned this earlier because he was “ashamed.” It was the psy-
4471bid. at 789.
448N. Bala & H. Lilies, “Transfer of Youths to Adult Court & Bill C-12: The Most Serious Dis-
position” (Address to the New Judges Orientation Course of the Canadian Association of Provin-
cial Court Judges, Val Morin, Quebec, 29 April 1992) [unpublished].
449Ibid. at 19.
45 1n R. v. J.W. supra note 424, the youth court judge rejected the defence’s argument that the
evidence respecting the charges was weak and then proceeded to allow the Crown’s application for
transfer. See also R. v. S.J.H. (1986), 76 N.S.R. (2d) 163 at 167 (Yth. Ct.), aff’d (1986), 76 N.S.R.
(2d) 163 (S.C.(T.D.)).
451Supra note 446.
452(1991), 5 O.R. (3d) 97 (C.A.) [hereinafter G.S.].
453The composition of the bench was different, except for Goodman J.A. who was a member of
both benches.
19931
NOTE
1031
chiatrist’s view that, at the time of the assault, the youth was suffering from a
panic attack, perhaps a homosexual panic, that he now had a tremendous
amount of remorse for his actions, and that he was treatable. within the YOA
framework.
The Ontario Court of Appeal agreed to accept the fresh evidence, given the
Crown’s consent to its admission. Nonetheless, Goodman J.A., this time deliv-
ering the judgment only for the majority, held that he could not attach substan-
tial weight to the psychiatrist’s opinion because it was based on the assumption
that the youth was telling the truth:
Dr. Meen [the psychiatrist] did not examine the young person until approximately
19 months after the killing. The young person … had ample time to think about
a scenario which might be more favourable to him. The homosexual assault, as
outlined in Dr. Meen’s report, was of a relatively insignificant nature. It seems
somewhat incredible that he would have been too embarrassed to tell anyone, even
his brothers, where the assault was so minor and the result so serious. It is also
incredible that, even if such an assault took place, he would have concocted a story
for the police which was so damaging to him. It would have been much simpler
to have told the truth, if such it were, namely, that he went to collect money owing
to him and was attacked, rather than telling them that he went to stab and rob the
victim. The statement to the police has the ring of truth of a statement made by
a panic-stricken youth, shortly after a violent episode. The statement made to the
psychiatrist, 19 months after the event, has the ring of a story made up to put him-
self in the best light.4 4
Goodman J.A. then concluded that, in the event of conflicting evidence as to the
circumstances of the alleged offence, a court is “entitled to proceed on the basis
of the evidence most damaging to the alleged offender, assuming that it is evi-
dence capable of belief and not merely trifling in nature or amounting to no
more than mere conjecture.”455
While the Court stated that it was not its function “to make findings of
credibility with respect to statements made by the young person” nor “to make
findings with respect to the guilt or innocence of the young person,” the Court
in fact’did both; it weighed the two contradictory statements and essentially
concluded that the version the youth gave to the psychiatrist was a lie. The order
to transfer was affirmed, based on the presumed truth of the Crown’s version of
the events. Moreover, the Court held that the discretion to accept the most dam-
aging evidence can be exercised whenever that evidence is “capable of belief”
and not “merely trifling” or “conjecture.” Thus, the threshold for accepting the
Crown’s evidence is quite low.
The reasoning of the Ontario Court of Appeal and Huband J.A. is compel-
ling, given that the criteria to be considered in an application for transfer
include, under paragraph 16(2)(a), “the seriousness of the alleged offence and
454Supra note 452 at 110-11.
4551bid. at 112. Carthy J.A., in dissent, stated that the decision on transfer must be made “without
presuming which version might be accepted by a judge or jury” (ibid. at 104). It should be noted
that other courts have taken a similar position to that of Carthy L.A. In R. v. W., supra note 425,
the British Columbia Supreme Court rejected the Crown’s submission that s. 16 “commence[s] on
the assumption that the offence exists and is provable” (ibid. at 272).
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McGILL LAW JOURNAL
[Vol. 38
the circumstances in which it was allegedly committed.” Such an evaluation has
serious implications for the young person, as it may encourage the Crown to
increase the severity of the charge in its effort to transfer the youth. For exam-
ple, a charge of murder could be raised from second to first degree. The case
law supports this contention. In G.S., Goodman LA. noted that “the nature of
the participation of a young person in the commission of an alleged murder is
an important factor to be considered by the court.”456
Moreover, Goodman J.A.’s suggestion that paragraph 16(2)(a) may be
used by the courts as a justification for the assumption that the offence will be
proven beyond a reasonable doubt by the Crown is problematic. The courts
often assert that the purpose of a transfer hearing is to determine the appropriate
forum for adjudication and not to determine the guilt or innocence of the
accused.4″7 Allowing the court to assume guilt, even if just for the purposes of
the transfer application, is difficult to reconcile with this intended purpose. At
the proceedings of the Legislative Committee on Bill C-58,45 professionals
involved in the youth justice system attested to the presumption of guilt inherent
in the transfer process as well as the acute problems it raises for the young per-
son.
According to Brian Scully, defence counsel and chair of the Ontario Social
Development Council’s Youth Justice Task Force, the presumption of guilt pro-
duces a “complete catch-22.”‘ 9 Once a youth indicates his or her desire to plead
not guilty, defence counsel will instruct that youth not to make an admission of
guilt or to show remorse in the course of the preparation of a section 13 report,
in order to protect the youth’s right to a fair trial. However, because of the pre-
sumption of guilt made by a court, one of the factors that it will seize upon to
determine if the youth is amenable to treatment within the three-year maximum
of the YOA is whether the youth has shown remorse or accepted responsibility
for his actions. Thus, if the youth fails to make an admission of guilt, he or she
appears unremorseful and not a good candidate for rehabilitation under the
YOA. 46 Robert Nuttall, a lawyer with the Canadian Foundation for Children,
456G.S., ibid. at 108. See also R. v. E.E.H. (C.A.), supra note 366, where the majority of the Sas-
katchewan Court of Appeal stated that it was “significant” that the charges against the youths were
not first-degree murder. It should also be noted that the possibility of the Crown pursuing such a
strategy has been a concern in the past. In its 1965 Report, supra note 35, the Department of Justice
Committee on Juvenile Delinquency recommended that the transfer provision of the JDA be
amended to remove the requirement that the offence be indictable because there was evidence that
the Crown would sometimes lay a more serious charge in order to apply for transfer.
457Supra notes 421-27 and accompanying text.
458See Legislative Committee on Bill C-58, supra note 321. In December of 1989, Bill C-58, An
Act to Amend the Young Offenders Act and the Criminal Code, was introduced into the second ses-
sion of the 34th Parliament. It was reinstated by a vote in the House of Commons on May 29, 1991,
in the third session of the 34th Parliament, as Bill C-12.
459Legislative Committee on Bill C-58, ibid. at 9:22 (7 November 1990).
460The case of R. v. M.A.Z., supra note 401, is illustrative of the benefits of showing remorse.
The youth, charged with two counts of first degree murder was appealing his transfer. The Ontario
Court of Appeal considered a letter written by a medical expert who had spent a total of 43 hours
counselling the accused. The doctor stated in his letter that “[tihere is no question of [the youth’s]
remorse over his actions” (ibid. at 72). The doctor concluded that, in his opinion, the youth’s con-
dition was treatable within 3 years in the young offenders system. The Court allowed the appeal
1993]
NOTE
1033
Youth and the Law has criticized the transfer process as “very unreal,”46’
because the judge must assume the youth is guilty in order to determine whether
or not to transfer. He has also commented on the dilemma a young person faces
in transfer, as the youth who remains unwilling to discuss the alleged offence
will be viewed as one who is “intractable … unwilling to deal with his problems
… and cannot be dealt with within the three-year period.”‘462
Thus, while the Ontario Court of Appeal and Huband J.A. from the Man-
itoba Court of Appeal may encourage judges to assume the guilt of the young
person, lawyers have testified to the serious implications of such an assump-
tion.463 If the transfer hearing inherently involves a presumption of guilt, the
consequences of such a presumption for fhe youth justice system must be exam-
ined in’ the context of the admissibility of hearsay evidence.
As a safeguard against the danger of hearsay which may be admitted
through the pre-disposition report and the section 13 report, the youth is given
the right to cross-examine the maker of the reports. However, no equivalent
safeguard is provided to the youth with respect to hearsay that is received by the
court in other respects. In S.R.,.’
the court was confronted with two conflicting
statements as to the circumstances of the offence. The evidence against the
youth consisted primarily of hearsay evidence, notably a statement made by an
alleged co-conspirator which charged that the youth was the main perpetrator of
the murder, as well as two other statements implicating the youth in the com-
mission of the offence, which he denied having any participation in. None of the
persons who made the statements were called as witnesses. The statements were
not made under oath and the persons were not subject to cross-examination. The
Court not only held that these statements could be received into evidence, but
further stated that the youth court judge was entitled to accept that evidence as
the truth for the purposes of the- application. Thus, the Court was able to assume
the guilt of the young person on the basis of hearsay statements, the most
incriminating of which was made by an alleged co-conspirator. Moreover, in
G.S.,4 65 the Court held that an assumption of guilt could be made provided that
and reversed the decision of the youth court judge: “[The accused’s] background, including his lack
of any juvenile record, his illness, his ‘treatability’ … his remorse and already gained insight … all
lead me to exercise my discretion and direct that the orders of the courts below be set aside” (ibid.
at 80).
461Legislative Committee on Bill C-58, supra note 321 at 4:8 (18 October 1990).
4621bid.
463Some people, including Mr. Nuttall, have also maintained that the presumption of guilt made
at transfer violates the youth’s constitutional right to be presumed innocent (ibid.). However, such
an assertion has not yet been made by the courts. In R. v. L.M. (1986), 33 C.C.C. (3d) 364
(B.C.C.A.), the British Columbia Court of Appeal held that s. 16(1) of the YOA did not violate ss.
7, 11(c) and 11(d) of the Charter. The Court stated that all the rights guaranteed by s. 11 related
to trial and sentencing procedures. In the recent iase of R. v. Pearson (1992), 17 C.R. (4th) 1, 77
C.C.C. (3d) 124 (S.C.C.), the majority of the Supreme Court of Canada also stated that the pre-
sumption of innocence guaranteed by s. 11(d) operates only at the trial of an accused. However,
the Court did state that the right to be presumed innocent is also protected by s. 7 as a substantive
principle of fundamental justice.
* 46Supra note 446.
465Supra note 452.
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REVUE DE DROIT DE McGILL
[Vol. 38
the evidence was “capable of belief’ and not “merely trifling” or “mere conjec-
ture.”
It is submitted that this threshold is too low to protect adequately the young
person against the potential prejudice arising from the admissibility of hearsay
evidence, especially given that such evidence can be used against the youth to
support a presumption of guilt. The approach taken in R. v. Christian H. ensures
greater protection to the rights of the accused, which is more consistent with the
YOA. 466 In Christian H., the Ontario Provincial Court held that “evidence at a
transfer hearing, particularly concerning the factual allegations for the offences,
should be no less credible and trustworthy than for any other adjudicative pur-
pose.”467 The Court cited the case of R. v. Hajdu, a decision made under the judi-
cial interim release provisions of the Criminal Code, as authority for this prop-
osition.468
Under paragraph 518(l)(e) of the Criminal Code, a justice in a bail review
hearing “may receive and base his decision on evidence considered credible or
trustworthy by him in the circumstances of each case.” The case law has held
that paragraph 518(1)(e) allows the justice to act on hearsay evidence. 419 None-
theless, limits have been placed on the reception of such evidence, in an effort
to minimize the prejudice to the accused. Thus, credible and trustworthy evi-
dence will include evidence that is usually inadmissible at trial “so long as each
party has a fair opportunity of correcting or contradicting any statement or evi-
dence he considers prejudicial to his position.””47 The accused’s right to cross-
examine with respect to any evidence he or she deems prejudicial was more
recently affirmed in Hajdu.4 ‘ The Court held that a statement by Crown counsel
as to the circumstances of the offence is not evidence considered relevant and
trustworthy, because it deprives the accused of his or her right to cross-
examination. According to Barr J., while the procedure followed by the Crown
was “convenient,” the rights of an accused person “must not be sacrificed on the
altar of expediency.”4 ‘ It is submitted that similar safeguards should be
extended to young persons, given the serious implications of a transfer order
and the fact that the hearing is a judicial proceeding. While the YOA itself con-
templates cross-examination with respect to the pre-disposition report and the
section 13 report, the courts must ensure that this right is extended to other
instances where the Crown leads evidence as to the circumstances of the
offence.
466(1986), 1 W.C.B. (2d) 59 (Ont. Prov. Ct. (Fam. Div.)) [hereinafter Christian H.].
4671bid. at 60.
1461(1984), 14 C.C.C. (3d) 563 (Ont. H.C.) [hereinafter Hajdu].
469Hajdu, ibid. at 566.
470Powers v. R. (1972), 9 C.C.C. (2d) 533 at 539, 20 C.R.N.S. 23 (Ont. H.C.).
471Supra note 468. But compare with R. v. Dhindsa (1986), 30 C.C.C. (3d) 368 (B.C.S.C.),
where the Court held that both Crown and defence counsel were allowed to make statements as
to the anticipated evidence. In the case of controversy or contradiction, affidavits could be tendered
and relied upon, and if the conflict was still unresolved, then viva voce evidence could be called
and cross-examination would take place. Toy L stated that he “remain[ed] unpersuaded that R. v.
Hajdu should be adopted and followed in this province” (ibid. at 370). Nonetheless, he did
acknowledge the importance of cross-examination in instances of conflict.
472Hajdu, ibid. at 572.
19931
NOTE
1035
Parliament and the courts seek to effect a balance between the often incom-
patible objectives of due process and the pursuit of truth on the basis of all avail-
able information. In this section, we have sought to suggest how that balance
can be redefined. Given the inherent problems of a focus on rehabilitation, it has
been argued that rehabilitation should not be a relevant factor in the decision-
making process of a transfer hearing; nor is it supported in the YOA itself. Con-
sequently, the focus on special needs should be on special protections. These
protections can be more easily reconciled with the principle of due process. A
broader protection of the accused’s rights would mean, at the very least, that
cross-examination be available to the young person.473
C. Least Possible Interference With Freedom
Paragraph 3(1)(f) of the YOA states that “the rights and freedoms of young
persons include the right to the least possible interference with freedom,” and
as with “special needs” and “protection of society, …. least possible interference
with freedom” is put forward as a guiding principle under the YOA. However,
in this section, we will argue that “least possible interference” has been
de-emphasized to such an extent under the YOA that to regard it as a guiding
or interpretive principle is illusory. Indeed, the subsidiary status of “least pos-
sible interference” is evident in the wording of paragraph 3(l)(/) itself, which
states that this principle is only to be emphasized to the extent that it is “con-
sistent with the protection of society, having regard to the needs of young per-
sons and the interests of their families.” Thus, the principle of “least possible
interference” has no independent meaning under the Act. For, the degree to
which “least possible interference” is achieved is entirely a reflection of the
extent to which the other principles in paragraph 3(1)(f) are emphasized. The
more the principle of “protection of society” is used to justify incarceration of
young offenders, or the more the principle of “needs of young persons” is used
to justify “treatment” of young offenders, the more state interference there will
be with young offenders and the less the principle of “least possible interference
With freedom” will be actualized.
In this section, we will examine how the principle of “least possible inter-
ference” has been applied under the YOA at three stages of the juvenile justice
473 0n May 15, 1992, Bill C-12 came into force. The only change brought by Bill C-12, supra
note 392, which touches on this issue is the addition of s. 16(12):
No statement made by a young person in the course of a hearing held under this section
is admissible in evidence against the young person in any civil or criminal proceeding
held subsequent to that hearing.
S. 16(12) is intended to protect any testimony given by the youth at his transfer hearing, as well
as any statements made by him in the preparation of a s. 13 report (Legislative Committee on Bill
C-58, supra note 321 at 10:28 (26 November 1990)). It is submitted that s. 16(12) contributes little
to the debate as to how to balance the various objectives of the YOA. Firstly, such protection is
likely to already exist under the Charter. Secondly, and more importantly, the concern surrounding
the presumption of guilt and the prejudice to the accused due to the introduction of such statements
into evidence, manifests itself at the stage of transfer. Thus, while the youth will now be made
explicitly aware of the fact that anything he says cannot be used against him at trial, it is submitted
that defence counsel will still instruct the youth to remain silent about the offence because the
potential prejudice that results from such statements stems from the fear that such information will
influence the transfer judge’s decision.
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process: police screening, alternative measures and sentencing. At each of these
stages, we will argue, the principle has been de-emphasized or subordinated to
other considerations. This, in our opinion, again illustrates the problem with the
use of abstract principles in a “Declaration of Principle” under the YOA. For,; as
we will show, the real question with regard to “least possible interference” is to
determine what the principle means at each stage of the juvenile justice process
and how, at each stage, it can be applied and balanced with other priorities.
1.
Diversion
The inclusion of the principle of “least possible interference” in the Dec-
laration of Principle can be traced to critiques made of the JDA during the 1960s
and 1970s. As we have shown,474 concerns about the stigmatizing effect of con-
tact with the formal justice system and doubts about the effectiveness of reha-
bilitation led many reformers to advocate non-judicial community alternatives
to incarceration or “diversion” programs.
The Law Reform Commission’s Working Paper on “diversion” defined
four such alternatives: 475
(1) Community absorption: Individuals or community groups deal with young
offenders to the exclusion of the police and courts.
(2) Screening: Police exercise discretion to refer the incident to family or com-
munity, or decide to drop the case, or commence formal processing.
(3) Pre-trial diversion: After the commencement of processing, the prosecution
refers a case to alternative measures at the pre-trial stage.476
(4) Alternative to imprisonment: The courts use their discretion to increase the
use of alternatives to prison such as absolute or conditional discharge, restitu-
tion, fines, probation, community service orders, or partial detention in a com-
munity-based residence.
These four methods of diversion can be broken down into two basic cat-
egories: keeping the youth out of the criminal justice system altogether, and
keeping the youth away from the formal criminal justice system by redirecting
him or her to an informal system.477 Thus, at the diversion stage, “least possible
interference” can be defined in terms of either diversion from the formal system
or diversion to an alternative structure.
474See text accompanying notes 145-56.
475Diversion, supra note 145 at 4.
476See N. Bala & H. Lilies, The Young Offenders Act Annotated (Don Mills: De Boo, 1984) at
17. Bala and Lilies expand on this concept of alternative measures. They note that the range of dis-
positional options that may be used in alternative measures programs includes special education
and counselling for behaviour problems or drug or alcohol related problems. Alternative measures
programs can be adaptable to the particular needs of the communities in which they are set up,
whether the community is rural, urban or native. One aim of such programs is to involve the com-
munity in dealing with the problems of the illegal behaviour of young persons. This is often
achieved through the use of community participants at all levels of the alternative measures pro-
gram, through the involvement of the victim and the employment of innovative forms of disposi-
tion.477Osborne, supra note 146 at 23.
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NOTE
1037
Diversion of youth from the juvenile justice system through police screen-
ing means that the youth will not come into contact with the formal system.47
Police screening is generally defined as the earliest possible cessation of official
intervention with young offenders after initial contact with law enforcement
authorities.4 79 Police screening represents “least possible interference” in its pur-
est form, as it implies that no sanction, referral or treatment is imposed.48 Police
decisions are thus among the most critical “links” in the decision-making chain
which starts informally in the community and ends formally “at the door of a
court room”:48’ “Since police make decisions about arrests and also make the
great majority of referrals to juvenile court, theirs is the strategic power to deter-
mine what proportions and what kinds of youth problems become official and
which ones are absorbed back into the community.””82
The rationale for police screening is that many misdeeds of youth are
minor and not indicative of any deeper deviance, and that official attention may
encourage them to become more, rather than less, oriented to problem behav-
iour. Screening these minor offenders out of the formal system may therefore
be preferable to dealing with them in an institutional setting.”‘ 3
The second type of diversion differs from the first ih that it involves some
degree of formal intervention. When “least possible interference” is defined as
“diversion to alternative measures,” it serves to remove a youth from the official
system for the purpose of placing that youth in community or quasi-official
478See B. Bullington et al., “A Critique of Diversionary Juvenile Justice” (1978) 24:1 Crime &
Delinquency 59 at 65-66.
4 79J.K. Cochran & C.E. Frazier, “Official Intervention, Diversion from the Juvenile Justice Sys-
tem, and Dynamics of Human Services Work: Effects of a Reform Goal Based on Labelling The-
ory” (1986) 32:2 Crime & Delinquency 157 at 159.
48 t See F.W. Dunford, “Police Diversion: An Illusion?” (1977) 15:3 Criminology 335 at 336.
Dunford notes that although screening by police and the formal pre-trial diversion of youth are
interrelated, the two concepts are distinct. The formalization of pre-trial diversion usually involves
some form of youth board or service or formal mechanism whose purpose is the analysis of cases
to determine whether or not they are appropriate for diversion. The decision of police to screen,
however, ends the youth’s involvement in the process, and they are no longer obliged, for example,
to carry out any form of rehabilitative therapy or community work. They are “let off” completely.
The basic distinction, then, between this screening, and formal diversion is that diversion is a form
of dealing with the youth but not while immersed in the formal criminal justice process. Diverted
youth, however, are still subject to referrals, community services, continued contact and follow-up
with representatives from the system. Dunford states that “[t]he basic distinction, however, is that
screening provides no referral, no service or treatment, and no follow-up. Diversion implies all
three” (ibid.).
See also M.L. Berlin & H.A. Allard, “Diversion of Children from the Juvenile Courts” (1980)
3 Can. J. Fam. L. 439 at 443-46, where the authors distinguish between “two methods of police
screening or diversion. First, there is ‘informal discretion’ –
the prevailing norm – whereby an
individual officer confronts an alleged offender and either reprimands, warns or charges him or her.
This is also referred to as ‘street adjudication.’ Secondly, there is ‘formal discretion’ through a
police screening agency at the police station, also known as ‘station adjustment.”‘
48’Solicitor General of Canada, Diversion from the Juvenile Justice System and its Impact on
Children: A Review of the Literature by S. Moyer (Ottawa: Supply and Services Canada, 1980)
at 11.
4 82E.M. Lemert, Instead of Court: Diversion in Juvenile Justice (Chevy Chase, Md.: Institute of
Mental Health, 1971) at 54.
483See Cochran & Frazier, supra note 479 at 159.
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agencies. This definition of “least possible interference” is explicitly referred to
in section 4 of the YOA under the rubric of alternative measures.4
From the Declaration of Principle, it is clear that the principle of “least pos-
sible interference” was intended to encompass both diversion from the system
by police screening, and diversion to alternative measures. Evidence of this
interpretation is in the very wording of paragraph 3(1)(d):
where it is not inconsistent with the protection of society, taking no measures or
taking measures other than judicial proceedings under this Act should be consid-
ered for dealing with young persons who have committed offenses;[emphasis
added]
In paragraph 3(l)(f), however, the definition of “least possible interference”
does not distinguish between “taking no measures” and “taking measures other
than judicial proceedings.”
Thus, there is no distinction made in paragraph 3(1)() between police
screening and alternative measures. This is problematic, not only in terms of the
YOA’s failure to provide a specific and precise meaning of “least possible inter-
ference,” but also in terms of the practical implications of the provisions them-
selves. For, while the principle of “least possible interference” has been applied
in relation to alternative measures, it has been largely overlooked in relation to
police screening. This, as we will show, has led to an increase in the numbers
of youths being processed in the juvenile justice system.485
The calls for decriminalization and deinstitutionalization of the juvenile
justice system were a major impetus for the reforms that led to the passage of
the YOA. 486 The principle of “least possible interference” in the form of diver-
sion was intended to reduce what was believed to be the over-institutionaliza-
tion of youth under the JDA. It was believed that too many youths were being
processed through the court system under the JDA, and that “non-dangerous
children clog the system, rendering it inefficient and costly.”4 7 The reformers
argued that the diversion of youths who commit minor offences would allow the
courts to deal more effectively with dangerous offenders.
However, it appears that the drafters of the legislation failed to acknow-
ledge the essential link between the concept of “least possible interference” and
police screening in reducing the number of youths in the system. When the prin-
ciple of “least possible interference” is not applied at the screening stage, there
484″Diversion” may include informal police screening, which is regularly employed to divert a
significant proportion of potential cases away from the courts, simply on the basis of a decision
on the part of police not to lay charges. The term diversion is also used to describe certain inno-
vative sentencing programs. The term alternative measures has been selected to distinguish the
structured and formalized type of diversion program from these other, broader uses of the word
diversion. Furthermore, the objective of such programs is to provide more flexibility and alterna-
tive options for dealing with young offenders and is not per se a substitute for court proceedings.
To put it another way, the objective is not so much to “divert from the judicial process,” but to seek
alternative solutions which will be effective in dealing with young offenders. See Bala & Lilles,
supra note 476 at 6.
4 85This phenomenon is commonly known as a “widening of the net.”
4
6See text accompanying notes 145-56.
1
487See Berlin & Allard, supra note 480 at 450.
1993]
NOTE
1039
is a danger that the police will refer young persons to diversion who otherwise
would have been released.4″‘ As Moyer notes: “Not to be overlooked in identi-
fying possible law enforcement reactions is the possibility that police may
increase their referrals for marginal cases as they perceive the diversion option
to be less harsh than a court referral and offer [sic] less risk to the officer than
the counsel-and-release option. ‘ 489
This fear has been substantiated by the few large empirical studies reported
to date.49 The most significant feature of the diversion programs examined in
the studies was the increase in official attention received by young offenders
who had traditionally been screened out of the system. According to Klein:
Thus, it can be suggested from these interviews that, while there is clearly a desire
in some police departments to divert juveniles from the system, the more common
feeling is that referral should be used as an alternative to simple release. In short,
the meaning of diversion has been shifted from “diversion from” to “referral to.”
Ironically, one of the ramifications of this is that in contrast to such earlier cited
rationales for diversion as reducing costs, caseload, and the purview of the justice
system, diversion may in fact be extending the costs, caseload and system purview
even further than had previously been the case. [emphasis added]491
According to Decker, alternative measures programs also have the poten-
tial for becoming “dumping grounds” for those youth on whom the police wish
to make “adjustments,” but against whom the police have little hope of making
a successful formal case.4′ Professor Doob argues:
A police officer may be faced with a decision on what to do with a young person.
Without some diversion alternative, he might be faced with only two choices:
warn the juvenile and release him to his parents or take him to court. Diversion
may make a difficult decision easier: he can leave the juvenile with the diversion
committee and let them worry about what should be done. The police officer,
then, is no longer responsible for the decision since he has displaced responsibil-
488D. O’Brien, “Juvenile Diversion: An Issues Perspective from the Atlantic Provinces” (1984)
26 Can. J. Crim. 217 at 220, 227. O’Brien states that: “[iln the United States, it has been estimated
that out of 500 possible juvenile arrests, only 100 are made, and of these 100, only 40 reach the
intake stage, only 20 appear in court, and only 2 or 3 are sent to a correctional institution” (ibid.
at 221). See also P. Nejelski & J. LaPook, “Monitoring the Juvenile Justice System: How Can You
Tell Where You’re Going, If You Don’t Know Where You Are?” (1974) 12 Am. Crim. L. Rev. 9
at 14.4t9 Moyer, supra note 481, cited in O’Brien, ibid. at 227.
490O’Brien, ibid. at 220. O’Brien refers to a juvenile diversion project in South Australia which
reported a 36% increase in the total volume of juveniles processed through the conventional system
and the project during the years 1972 and 1973. See R. Sarri & P.W. Bradley, “Juvenile Aid Panels:
An Alternative to Juvenile Court Processing in South Australia” (1980) 26 Crime & Delinquency
42. And see Klein, who conducted research in 35 police departments participating in diversion pro-
grams in the United States. M. Klein et al., “The Explosion in Police Diversion Programs: Eval-
uating the Structural Dimensions of a Social Fad” in M. Klein, ed., The Juvenile Justice System
(Beverly Hills: Sage, 1976) 101 at 108. He reported that young minor offenders, with little or no
records, who are unlikely to be arrested, are those that are most likely to be referred for diversion.
See also Dunford, supra note 480 at 342-43.
491Dunford, ibid.
492See S.H. Decker, “A Systematic Analysis of Diversion: Net Widening and Beyond” (1983)
13 J. Crim. Justice 207 at 207-10. Decker concludes: “Diversion has consistently led to an increase
(sometimes by substantial proportions) in the same number of youths subject to formal social-
control efforts” (ibid. at 209).
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McGILL LAW JOURNAL
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ity for the juvenile to the diversion committee. The committee, on the other hand,
is also not responsible since it received the juvenile from the officer who, pre-
sumably, made the decision not simply to warn the juvenile and return him to his
parents.
493
The potential danger of net widening when alternative measures are imple-
mented without simultaneously addressing police screening appears to be play-
ing itself out. In British Columbia, the proclamation of the YOA and alternative
measures provisions elicited a great deal of reaction from the police commu-
nity.494 Corrado and Markwart note that the police reaction was, in part, the
product of a perception that their authority had been eroded49 as a result of the
emphasis on the Crown’s discretion to divert to alternative measures. This is
because British Columbia alternative measures provisions applied the concept
of “least possible interference” at the prosecutorial level but did not address the
principle of non-intervention at the police screening stage. As was predicted by
Moyer and O’Brien, police officers, when not provided with an explicit direc-
tive to give the principle of “least possible interference” a high priority, have
tended to refer the young offenders to the prosecutor, rather than exercising their
own discretion to screen youth from the system.496
The fact that the YOA does not extend the principle of “least possible inter-
ference” to police screening is a good example of the low priority given to that
principle under the YOA. In fact, the issue was raised in debates preceding the
1975 YPICL proposals, but was decidedly cast aside, not to be subsequently
re-examined 497 In the YPICL proposals, the then Solicitor General suggested
that when alternative measures were in place,498 the police would still continue
to screen out cases as they had done previously. Doob suggests that this was a
false assumption, naively made.499
Instead of relying on the assumption that the police would exercise their
discretion to screen cases, we believe that “set, non-discriminatory principles”5’
should have been introduced at the police screening stage in order to make more
explicit the principle of “least possible interference.” Berlin and Allard suggest
that the only way to standardize and objectify discretion is to itemize criteria
that go into the discretionary practices.5 ‘ It is clear that such criteria would have
panier, eds., Current Issues in Juvenile Justice (Toronto: Butterworths, 1983) 147 at 167.
493A.N. Doob, “Turning Decisions into Non-Decisions” in R.R. Corrado, M. LeBlanc & J. Tr6-
494See R.R. Corrado & A. Markwart, “The Prices of Rights and Responsibilities: An Examina-
tion of the Impact of the Young Offenders Act in British Columbia” (1988) 7 Can. J. Fam. L. 93
at 97.4951bid.
496Supra notes 481, 488.
497See Doob, supra note 493 at 165.
498Diversion took the form of a formalized “screening agency.”
499See Doob, supra note 493 at 165. Doob concedes that perhaps this is not an inevitable con-
sequence of formalized diversion, but it is one that appears likely.
5Berlin & Allard, supra note 480 at 445.
5011bid. Berlin and Allard appear to have taken the position outlined on this issue by the Cana-
dian Law Reform Commission when it stated that although discretion plays a major role in police
screening, the decision to lay charges in one case and screen out in another situation must have
some rational basis. See Diversion, supra note 145 at 7.
1993]
NOTE
1041
to be sufficiently general to give police the flexibility to deal with particular cir-
cumstances. But some general guidelines would inject greater fairness and due
process into this currently informal process. Although the police officer’s input
would still be considerable, it would also be directed by standardized guide-
lines.5
At the police screening stage, then, the principle of “least possible interfer-
ence” relates to the goal of keeping young persons out of the- system altogether.
However, at the alternative measures stage, this principle takes on a different
meaning. For, once the young person is introduced into the formal system, the
question is how best to protect the young person from inappropriate or exces-
sive state intrusion. In this respect, the application of “least possible interfer-
ence” in relation to alternative measures is more problematic than at the screen-
ing stage. For, while alternative measures necessarily introduce a degree of
informality into the corrections process, critics of diversion have pointed out
that there is a very real danger that the adoption of alternative measures can
potentially undermine the rights of young offenders and reduce their access
to due process if proper precautions are not adopted. As Bullington, Katkin,
Sprowls and Phillips note:
The juvenile justice system has come full circle. The juvenile court, once the
informal mechanism of diversion from the stigmatizing and punitive processes of
criminal justice, is now the legalistic tribunal from which children are to be
diverted. The informal practices of parens patriae justice are being abandoned in
juvenile courts only to be re-created in innovative diversion programs. Reformers
in the field of juvenile justice do not seem to have learned much from history:
They do not yet recognize the basic incompatibility of informality and justice, nor
do they recognize that benign intentions are inadequate safeguards of individual
liberties.
50 3
Three major areas of concern have developed with respect to a youth’s
legal rights when entering an alternative measures program: admission of guilt,
52See Diversion, ibid. at 7. The Commission offered an example of the criteria which could be
appropriately applied in order to decide whether or not a youth is a suitable candidate for screening.
The Commission stated:
The policies upon which the decisions are based should be stated publicly and followed
in individual cases. Such policies should, as far as possible:
(a) identify situations calling for charge rather than screening out;
(b) establish a criterion for the decision rather than screen out;
(c) require a charging option to be followed unless the incident can be screened out.
The assumption is that police and prosecutors should continue to exercise their discre-
tion not to lay charges in the proper cases, and that such use of discretion should be
increased. The equal application of justice under the law at this level should be encour-
aged throughout the development of express policies and criteria as indicated above.
503See Bullington et al., supra note 478 at 69. See also the equally critical statement of Berlin
& Allard, supra note 480 at 456, while commenting on the situation in Canada:
it seems a paradox that, at the very time when the question of the Juvenile Justice sys-
tem and its supposed lack of formal procedures are being harshly criticised, the
informal procedures outside the Court system which quantitatively represent 50% to
80% of all intervention in the system and, which are, therefore, more significant than
the formal interventions, are not only unexamined but encouraged. Simply put, if infor-
mality is so hazardous in the Court setting, is it not even more hazardous, more
improper, outside the protection of the Court?
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[Vol. 38
coercion, and default.5″ First, one of the major threats to the rights of young
offenders is the requirement of an admission of responsibility as a “precondi-”
tion” for entry into an alternative measures program. This is a threat because the
youth’s legal rights may be jeopardized in marginal cases that would otherwise
have been dismissed by the court. Having already admitted responsibility, the
youth is held by the system. Moreover, to structure a program around the admis-
sion of guilt appears to disregard the fundamental principle of the presumption
of innocence.” 5 It is a general principle of criminal law that a person is pre-
sumed innocent. The responsibility for determining guilt in criminal proceed-
ings is a judicial function and not a policy or prosecutorial decision to be made
outside the courtroom.5″ However, diversion programs rarely have the same
safeguards as those found in a courtroom. As is observed by Davies:
There is no guarantee that an accused who consents to diversion will be fully cog-
nizant of his loss of rights. In such proceedings, the principle of our system of jus-
tice that guilt ought to be established in a court of law, is vital. An admission of
responsibility does not, by itself, constitute a finding of guilt in a court of law.
There is a strong possibility that a person, ignorant of his rights at law, may par-
ticipate in a mediation proceeding and make restitution, when he would have been
acquitted of the charge in a criminal court.5
A second problem is that the structure of an alternative measures program
is potentially coercive. A youth has the option of admitting guilt and being
diverted, or maintaining innocence and being processed through the system. A
young person innocent of the charges may feel that he or she would be “better
off’ simply accepting the relatively mild penalties imposed by the alternative
measures rather than exposing him or herself to the inconvenience, stigma, and
expense of a formal trial. Even when a youth is innocent, he or she may perceive
a risk of being found guilty, and the possibility of being subjected to an even
greater penalty.58 Although the entire diversion process purports to be pure-
ly voluntary, one might question the true nature of this voluntariness. Does a
youth’s effort to avoid the possibility of a trial, which may appear frightening
to that youth, truly constitute volunteering himself or herself for diversion?5” In
R. v. Jones, Anderson J. criticized an alternative measures scheme on precisely
this ground:
While it can be argued that the diversionary program is voluntary in the sense that
the accused was not compelled to agree to the “diversion” conditions fixed by the
prosecutor, it seems to me that one cannot avoid the fact that there was coercion
54See H.A. Allard, Diversion: A Canadian Concept and Practice (1977) [unpublished]. One
noteworthy aspect of the tension between non-intervention and the legal rights of young offenders
is that any potential violation Qf a youth’s legal rights is contingent upon whether or not youths
are given a meaningful right to counsel before making a decision to accept or refuse alternative
measures. It is essential that counsel be present to inform a young offender of the possibility of
alternative measures and their consequences.
of Penal Reform” (1976) 14 Osgoode Hall L.J. 759 at 764.
505See Berlin & Allard, supra note 480 at 458.
51See D.T. Davies, “The Pitfalls of Diversion – Criticism of a Modem Development in an Era
5071bid.
50 See K. Catton & J.S. Leon, “Legal Representation and the Proposed Young Persons in Con-
509See Berlin & Allard, supra note 480 at 458.
flict with the Law Act” (1977) 15 Osgoode Hall LJ. 107 at 120.
19931
NOTE
1043
in a very real sense. … To my mind, to speak of a “diversion” agreement as a free
and voluntary bargain in such circumstances is to speak of an illusion.510
Third, it has been argued that a truly voluntary, non-coercive diversion pro-
gram would be one where there is no reprocessing upon default of diversion.’
Many advocates of alternative measures believe that a default provision is nec-
essary in order to ensure that the diverted youth completes the diversion con-
tract or agreement.512 The major criticism of such a default mechanism is that
it is essentially coercive and violates a young offender’s rights. In the Jones
decision,” 3 Anderson J. concluded:
The courts and only the courts have the right to impose sentence and the Crown
cannot create an administrative program, inherently coercive in nature, whereby
the accused accepts “diversion” on terms fixed by the prosecutor, subject to con-
trol by the prosecutor, who retains the discretion to revive the criminal proceed-
ings if the accused fails to adhere to the terms fixed by the prosecutor. … Even if
I am wrong in law in ‘respect of the conclusions I have reached, it would seem
unwise to prosecute in cases of default. Some of the purposes of “diversion” are
to avoid expense, publicity and legal entanglements. It is. readily apparent that
such purposes will not be achieved by proceeding against a defaulting accused on
“revived” charges.514
It seems then that the principle of “least possible interference” as applied
to alternative measures is ineffective as a guiding principle. For, “least possible
interference” in this context can be interpreted either as grounds for the devel-
opment of more alternative measutes or as a justification for limiting the appli-
cation of these measures. In other words, does “least possible interference”
mean the right to participate in alternatives to formal judicial processing or does
it mean the right to all the legal protections which an accused receives in a
formal court setting?
510R. v.Jones, [1978] 3 W.W.R. 271 at 283-84,4 C.R. (3d) 76 (B.C.S.C.) [hereinafterJones cited
511See Diversion, supra note 145 at 18-19. The Law Reform Commission offered two possible
to W.W.R.].
approaches:
1. Do nothing at all –
considering that a policy decision was already made that the
case was not one of such general public importance as to warrant a criminal trial, how
much weight should be placed on the fact that the offender does not keep his or her
promise?
The commission reasoned that “[tihe chances are probably 50-50 that [the offender] won’t be
heard from again in any criminal matter. If he is proceeded against, his very default is likely to
be held against him at time of sentence and lead to a more severe sentence than the original offence
may have warranted” (ibid. at 18).
2. Resume criminal proceedings – The commission decided that “loin balance, the
option of resuming criminal proceedings in the event of a wilful breach of a pre-trial
settlement order would probably be desirable” (ibid. at 19).
512See O’Brien, supra note 488 at 221. The author notes that in all four of the Atlantic provinces,
diversion projects list a default option in their operating procedures. In practice, however, it is seP
dom used: “Out of 2387 cases handled by the four projects to date, only 26, approximately I per
cent, have been returned to court for non-completion of agreement.”
513See Jones, supra note 510 at 283, 287.
5141t should be noted that this position of Anderson J. has been countered by the assumption of
a need for default sanctions. O’Brien quotes Ewaschuk who states: “There must be some deterrent
or incentive for a divertee to honor the diversion agreement, otherwise the whole effort may be
reduced to a mere exercise in futility with no teeth to encourage compliance” (supra note 488 at
222).
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In drafting section 4, it appears that the legislators did not address this
question explicitly. While section 4 purports to set out a framework for the
implementation by the provinces of alternative measures programs, the provi-
sions under section 4 are skeletal in nature. The wording of section 4 of the YOA
indicates that alternative measures programs by the provinces are optional. Par-
agraph 4(1)(a) states:
4(1) Alternative measures may be used to deal with a young person alleged to
have committed an offence instead of judicial proceedings under this Act
only if
(a) the measures are part of a program of alternative measures authorized by
the Attorney General or his delegate or authorized by a person, or a per-
son within a class of persons, designated by the Lieutenant Governor in
Council of a province; [emphasis added]515
The “may” in the alternative measures provisions is significant. Such an
optional provision is a departure from the earlier proposals for mandatory
screening mechanisms that were proposed in YPICL.5 6
The equation of “least possible interference” with alternative measures has
been further undermined by the courts. In the 1986 case of T.W. v. R.,s it for
example, the Saskatchewan Court of Queen’s Bench decided that paragraphs
3(l)(d) and (f) do not create substantive law. The Court rejected the argument
of counsel to the effect that section 4 confers a right to receive alternative mea-
sures and instead held that section 4 does not require the Crown to consider-
515YOA, s. 4(l)(a).
5 161t is clear, in looking at the alterations made to the YPICL proposals, supra note 38, that the
“protection of society” played a significant part in the retreat from diversion during the late 1970s.
However, there were also political and economic concerns. The shift in diversion policy from
YPICL to the YOA is due in part to the constitutional distinction between jurisdiction over criminal
matters and jurisdiction over welfare matters. Since diversion depends for its success on the imple-
mentation of innovative community-based alternatives to the criminal incarceration system and
since these local programs relate to welfare services, they fall under provincial jurisdiction. And
the provinces in 1981 had the same objections they had in 1970. Some of the concerns about rais-
ing the maximum age were expressed at the 1974 federal-provincial joint review conference (supra
note 103 at 57-58). One province (unnamed in the Report) noted that the addition of 16- and
17-year-olds would involve the development of services, methods and techniques for an age group
which was foreign to their experience; another member noted that an increase to 18 would create
the need to develop different programs in the training school settings; another member pointed to
the need for specialized foster homes, residential facilities and closed detention centres; another
member noted that there is a tendency to design juvenile programs for the median age of 15, which
tends to make the 17-year-old too mature or sophisticated to profit from these programs (ibid. at
55-57), In one of the provinces, it was estimated that the training school population would be
increased by as many as 1,566 new trainees. The net additional operating expenses were predicted
at approximately 19 million and the total capital expenditures at approximately 67 million (ibid.
at 57). Once again, some of the provinces complained that they would have to upgrade their facil-
ities for 16- and 17-year-olds as well as extending their welfare services for children under 14. For
example, the Ontario Provincial Secretary for Justice, in a 1982 letter to the Solicitor General,
wrote that Ontario was “deeply concerned” with the “dramatic changes” entailed by the Standing
Committee (supra note 162 at 63A:89 (23 February 1982)). Ontario stated that it was concerned
not only about the cost but also about the placing of young offenders in the same facilities as 16-
and 17-year-olds (Standing Committee, ibid. at 63:50).
517(1986), 25 C.C.C. (3d) 89 (Sask. Q.B.).
19931
NOTE
1045
alternative measures in every case.”‘ A second case which addressed the inter-
pretation of paragraphs 3(1)(d) and (f) and section 4 of the YOA was the 1990
Supreme Court of Canada decision in R. v. S.(S.)519 in which the Supreme Court
decided that the word “should” in paragraph 3(1)(d)520 does not create a man-
datory duty. In the context of paragraph 3(1)(d), the word “should” denotes sim-
ply a “desire or request” and not a legal obligation. 2′ The Supreme Court also
held that subsection 4(1) does not oblige the provinces to implement similar or
– In fact, the Court went so far as to
consistent alternative measures programs.’
decide that subsection 4(1) does not even oblige a province to implement alter-
native measures. All that subsection 4(1) really requires is that if a province
decides to implement alternative measures, certain minimal constitutional rights
must be adhered to. These are the right to counsel, admission of guilt and suf-
ficiency of evidence. Subsection 4(1) thus gives the provincial Attorney-
General a power, but not a duty, to develop and implement alternative measures
programs.523
The optional nature of section 4 indicates that “least possible interference”
is defined largely in terms of due process rather than in terms of alternative
measures. Under the YOA, an attempt was made to address due process con-
cerns by guaranteeing certain minimum due process safeguards to young
offenders. Subsection 4(1) provides:
(1) Alternative measures may be used to deal with a young person alleged to have
committed an offence instead of judicial proceedings under this Act only if
(a) the measures are part of a program of alternative measures authorized by
the Attorney General or his delegate or authorized by a person, or a per-
son within a class of persons, designated by the Lieutenant Governor in
Council of a province;
(b) the person who is considering whether to use such measures is satisfied
that they would be appropriate, having regard to the needs of the young
person and the interests of society;
and freely consents to participate therein;524
(c) the young person, having been informed of the alternative measures, fully
5181bid. at 94.
519[1990] 2 S.C.R. 254, 77 C.R. (3d) 273 [hereinafter S.(S.) cited to S.C.R.].
520S. 3(l)(d) states that “taking measures other than judicial proceedings under this Act should
be considered for dealing with young persons who have committed offenses.”
52’See S.(S.), supra note 519 at 274.
5121bid. at 285.
5
23J.P. Wright, Young Offenders and the Law (North York: Cactus Press, 1991) at 59. The reluc-
tance to implement alternative measures in Ontario and Prince Edward Island illustrates how the
wording of the provisions allows a province to reject the principle of non-intervention. Ontario and
Prince Edward Island interpreted the “may” in s. 4 to mean that the legislation was optional and
refused to implement alternative measures. The result was that a young offender in Ontario or
Prince Edward Island would not be given access to the same form of options or alternatives within
the juvenile justice system as the young offenders in other provinces.
524See The Continuing Legal Education Society of British Columbia, The Young Offenders Act
(Materials Prepared for the Address to the Continuing Legal Education Conference, 19 January
1991) [unpublished]. This requirement protects against possible coercion from parents or other
individuals in authority. Before consenting to alternative measures, a young person must be
informed of the specific measures to be used. The requirement that a young person consent with
knowledge of the specific form that the alternative measure will take is one method of safeguarding
the young person from unsuitable or overly burdensome measures.
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(d) the young person has, before consenting to participate in the alternative
measures, been advised of his right to be represented by counsel and been
given a reasonable opportunity to consult with counsel; 525
the young person accepts responsibility for the act or omission that forms
the basis of the offence that he is alleged to have committed;526
(e)
(I) there is, in the opinion of the Attorney General or his agent, sufficient
(g) the prosecution of the offence is not in any way barred at law. 528
evidence to proceed with the prosecution of the offence; 527 and
These due process safeguards in subsection 4(1) must be adhered to whenever
a program of alternative measures is implemented. However, in seeking to give
effect to due process concerns, the legislators effectively abandoned an attempt
to introduce a developed and clear alternative measures provision.529
5251bid. at 26-27. The young person must be informed of his or her right to counsel before giving
consent to participate in alternative measures. Without a reasonable opportunity to consult with
counsel, it is possible that a young person’s consent is not “fully and freely” given. The require-
ment that a young person be given a “reasonable opportunity to consult with counsel” would seem
to suggest that a young person must be given enough time to consult with counsel, but would not
seem to make it mandatory that he be provided with counsel. Thus, if a young person could not
afford counsel or obtain some form of legal aid, he or she may not be able to actually obtain legal
advice before consenting to or participating in a program of alternative measures. The provisions
of s. 4(l)(c) should be read in relation to s. 11(d), which creates a scheme for ensuring that each
young person involved in alternative measures must be assured access to counsel.
5261bid. at 27. It appears that accepting responsibility is something less than indicating an inten-
tion to plead guilty if charged in youth court. The wording of s. 4(1)(e) requires acknowledgement
of responsibility for the act that forms the basis of the offence, rather than responsibility for the
offence per se. Thus a person may “accept responsibility” for an offence without actually admitting
full criminal responsibility.
5271bid. at 28. This provision acts as a safeguard against “widening the net.” It attempts to mil-
itate against using alternative measures for weak cases which would not otherwise have gone to
court, thus ensuring that alternative measures are truly alternative to prosecution, and not merely
an addition to formal processing.
5281bid. at 28. This refers to legal bars against proceeding. For example, by virtue of s. 51 of the
YOA, the 6-month limitation period for summary conviction offences under the YOA set out in s.
721(2) of the Criminal Code also applies to all summary conviction offenses under the YOA. Thus,
alternative measures may not be used after this limitation period has passed.
Another example, owing to the principle of resjudicata and the special pleas of autrefois acquit
and autrefois convict, alternative measures are prohibited if the young person was previously
acquitted or convicted of the offence in youth court.
529House of Commons Debates (15 April 1981) at 9307-28. Support for this interpretation comes
directly from Solicitor General Kaplan. He recognized that the federal government had come under
criticism for not having made the alternative measures provisions mandatory and more explicit. Mr.
Kaplan addressed this criticism. He stated that proponents of such arguments failed to recognize
the importance of due process and the needs for provinces to exercise their own discretion to
develop programs which suit their particular circumstances. He continued:
For these and other reasons, including the belief that there is yet much to learn through
experience about the diversion concept itself, new legislation does not prescribe any
formal model or mechanism of diversion. While the legislation will sanction such prac-
tices in law, it will leave it to the provinces to decide what type of diversion programs
will be implemented. Of particular importance, however, is the fact that the legislation
does contain a number of conditions and safeguards which must be applied so as to pro-
tect young persons against potential abuses and arbitrary action (ibid. at 9309).
Earlier in his remarks, Mr. Kaplan stated:
We have been equally conscious of the controversy which exists between individuals
and groups who espouse the informal versus the formal disposition of juvenile cases.
There remain many concerns about the inherent dangers of exercising unfettered dis-
1993]
NOTE
1047
In our opinion, those due process protections are desirable. However,
understanding “least possible interference” under section 4 in terms of purely
due process concerns further calls into question the independent meaning of
“least possible interference” as a guiding principle. For, if “least possible inter-
ference” is treated as essentially synonymous with “due process,” then the prin-
ciple of “least possible interference” becomes merely a subset of other guiding
principles under section 3.
2.
Custody
A custodial disposition is the gravest interference with a young person’s
freedom envisaged under the YOA. Therefore, a useful measure of the extent to
which the courts are giving priority to the principle of “least possible interfer-
ence” is whether they are employing custody as their disposition of choice.
It has been argued that the YOA establishes a presumption of a non-carceral
sentence subject to certain exceptions.530 Evidence for this argument can be
found in a number of cases where the courts have held that a custodial term is
a disposition of last resort, and that it should be imposed on a first-time offender
only in the most severe circumstances. 3′ For example, in R. v. M.C.L.V, the
Prince Edward Island Supreme Court reduced a custodial disposition ordered
for a fourteen-year-old youth who had pleaded guilty to three counts of break
and enter on the grounds that “[a]bsent a good reason, the secure custody por-
tion of the disposition offends the principle contained in subsection 3(1)(e) of
the Young Offenders Act.” ‘532 Similarly, in R. v. Ryan D., the Alberta Provincial
Court refused to order a custodial disposition for a young person convicted of
stealing an audiocassette, on the grounds that ordering custody for a first time
shoplifter would clearly conflict with the principle of “least possible interfer-
ence.”533
However, other courts have rejected the view that custody should be a last
resort disposition, to the point where Young’s “exceptions” swallow up his rule.
For example, the “presumption” will not apply where a minor has a criminal
record,5″ or where the offence is sufficiently violent.53 5 In the most extreme
rejection of a non-custodial “presumption,” the Nova Scotia Court of Appeal
cretion in the application of diversion programs and to make sure that informality not
trench upon the basic legal rights of young persons and their equitable treatment (ibid.
at 9308-09).
53 0Young, supra note 205 at 99.
531See e.g. R. v. G.K., supra note 181; R. v. P.L.M. (1985), 69 N.S.R. (2d) 99, 163 A.P.R. 99
(S.C.(A.D.)).
532(1989), 80 Nfld. & P.E.I.R. 6 at 7, 249 A.P.R. 6, 8 W.C.B. (2d) 281 (P.E.I.S.C.(A.D.)).
533(1985), 18 C.C.C. (3d) 36 (Alta. Prov. Ct. (Youth Div.)).
534R. v. D.M.P. (1985), 70 N.S.R. (2d) 433 (S.C.(A.D.)).
535Rv. F.L.W. (1986), 78 N.S.R. (2d) 225 (S.C.(A.D.)). See also R. v. J.B.S. (1988), 3 Y.R. 157
(Yth. Ct.), where a 21-year-old who had committed a sexual assault, attempted rape and gross inde-
cency when he was 15 was committed to 6 months of secure custody and 2 years of probation.
Woodrow J., speaking for the court, specifically stated, ibid. at 158, that the principle of the dimin-
ished responsibility of youth in s. 3(1)(a) did not remove the court’s power to order closed custody
for a first offence in serious circumstances.
1048
McGILL LAW JOURNAL
[Vol. 38
ordered a sentence of five months in open custody for a fourteen-year-old young
offender with no prior record who was convicted of stealing a skateboard.” 6 The
Court based its choice of disposition on the finding that the youth was com-
pletely out of control at home and at school. Clearly, the use of custodial sanc-
tions in such a situation runs contrary to any principle of “least possible inter-
ference.”
The assertion that the principle of “least possible interference” is given a
low priority by the courts in sentencing is supported by the custody statistics.
Markwart and Corrado537 report, for example, that admissions to custody for
youths have increased by as much as eighty-five per cent since 1982, while
adult admissions have decreased by twelve per cent.53 Focusing on Ontario,
these authors point to a general increase of sixty-seven per cent as compared
with the JDA. Since seventeen-year-olds did not come under the JDA in
Ontario, Markwart and Corrado looked at how they were treated as adults com-
pared with how they are being treated under the YOA, and found a forty-four
per cent increase over the period 1983/84 to 1986/87 in the use of custody as
well as a near doubling in the length of sentence. They conclude that the YOA
“is more punitive at best and more reliant on custody at worst.” ‘539
Similarly, the Department of Justice has cautiously conceded that there has
been an increase in the use of custody since the passage of the YOA.I Their
caution stems from legitimate methodological concerns about how the statistics
are collated. For example, there are three modes of examining whether there has
been an increase in the use of custody: an examination of either the incidence
of committals to custody, the average custodial sentence length or the average
daily population. The conclusions that can be drawn will depend upon where the
supra note 171 at 7.
536R.R. v. R. (1986), 17 W.C.B. 109, Y.O.S. 86-091 (N.S.S.C.(A.D.)).
537A. Markwart & R. Corrado, “Is the Young Offenders Act More Punitive?” in Beaulieu, ed.,
538During 1990, 116,400 youths were sent for trial, with 21% being charged with theft under
$1000, 15% with break and enter and 17% with violent crimes. After trial, 65% were found guilty,
with the majority of the remainder having their charges either stayed or withdrawn; only 1% were
found not guilty. The trial decisions vary enormously across the provinces. For example, only 53%
of those charged in Ontari6 were found guilty, while 40% had their charges withdrawn. This com-
pares with Quebec, where 83% were found guilty and less than 5% had their charges withdrawn.
The only other province with as low a percentage of guilty verdicts as Ontario was Manitoba with
58% and the same percentage being withdrawn as in Ontario. What this reveals about the varying
practices of laying charges in the different provinces we do not know. But considering the possible
detrimental effects on youths it would appear exigent that such discrepancies be investigated. The
type of disposition ordered varies markedly across the different provinces. For example in Ontario,
26% received custody and only 28% probation. This contrasts with Quebec, where 33% received
custody and 48% probation. However, the most stark contrast is British Columbia, where only 21%
received custody while 65% were placed on probation. As is stated in note 77, such discrepancies
require prompt investigation, since such variations in the imposition of dispositions are unlikely
to be attributable to different offending patterns and are therefore the result of the Act being applied
distinctively. While uniformity of sentencing across Canada is not being exhorted, if the Act is con-
sistently being applied more harshly in one province, we contend that efforts should be made to
attenuate it.
539Markwart & Corrado, supra note 537.
540Department of Justice, Consultation Document on the Custody and Review Provisions of the
YOA (Ottawa: Queen’s Printer, July 1991) at 1-3 [hereinafter Consultation Document of 1991].
19931
NOTE
1049
weight is placed on these different data. With this in mind, the Department has
drawn the following conclusions:
1) Six out of 8 provinces showed a marked increase in the numbers of youths
going to custody in the six-year YOA period, for example British Columbia,
Alberta and Manitoba all showed increases in excess of 80%. 54′ 1
2) The average daily population suggests moderate decreases for most provinces,
for example Nova Scotia and Qu6bec showed 28% and 14% decreases respec-
tively.
54 2
3) Although the average length of sentence is difficult to compare because of the
use of indeterminate sentences under the JDA,-the data available tends to sug-
gest a 30% decrease. 54 3
4) The majority of committals are for property offences, with only 15% being for
violent crimes. 45″
5) 70% of those committed to custody are recidivists.545
At first blush these data appear inconsistent. What is the explanation for an
increase in the use of custody and a decrease in the average daily population?
The suggestion of the Department of Justice, which is borne out by the decrease
in length of sentence, is that more young offenders are being sent to custody but
for. shorter periods.’
In fact, most youths receive custodial dispositions of
between one and three months, lending support to the position of the Depart-.
ment of Justice. 7
The minimal influence of the principle of “least possible interference” is
made especially clear by the fact that thirty per cent of custodial dispositions are
for first offenders,5″ and that the courts appear to be treating property offenders
and those committing violent offences in a very similar manner. For example,
of those found guilty of “break and enter,” sixteen per cent received secure cus-
tody and eighteen per cent open custody, as compared with those convicted for
assault with a weapon where fifteen per cent received secure custody and six-
teen per cent open custody.5 This comparison is also true for theft over $1000
and sexual assault.55 If the courts were committed to the principle of “least pos-
sible interference,” more first offenders and property offenders would receive
non-custodial dispositions.
This raises the question of why the YOA has led to an increase in the use
of custody. One reason, we believe, is that judges perceive that there are few
alternatives to custody for medium severity offenders. For example, in the case
of a young person who has been given a community service order for a first
offence and probation for a subsequent offence, perhaps the only real alternative
541bid. at 6.
5421bid. at 8.
543Ibid. at 4-5.
544Ibid. at 9.
545Canadian Centre for Justice Statistics, Recidivists in Youth Court: An Examination of Repeat
546Consultation Document of 1991, supra note 540 at 12-13.
547Ibid.
548Ibid.
549Ibid.
55Obid.
Young Offenders Convicted in 1988-89 (Ottawa: Statistics Canada, June 1990).
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REVUE DE DROIT DE McGILL
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to a judge for any further offences is custody. Another possible explanation is
that judges perceive the need to increase the severity of the penalty every time
a youth commits an offence. This may well explain some of the over-reliance
on custody, but it fails to demonstrate why custody is imposed so often on first
time offenders.5″‘ However, the real problem, we believe, is that the principle of
“least possible interference with freedom” has been downplayed by the courts
in relation to “protection of society” and “special needs.”
First, as we have discussed, many courts have applied general deterrence
as a justification for imposing custodial sentences. 2 As deterrence relates pri-
marily to the goal of “protection of society,” this is a clear downplaying of the
principle of “least possible interference.” Second, as discussed above, 553 the
courts have interpreted special needs to relate to rehabilitative and welfare goals
in several cases. A rehabilitative or child welfare model creates a much greater
possibility for state intervention in the life of the young person. In particular,
where custody operates as a surrogate for youth protection, a first-time young.
offender may be placed in custody for a relatively minor offence, provided that
such a term would better meet his or her welfare needs. An example of this
approach is found in R. v. JJ.M.,5 4 where the Manitoba Court of Appeal indi-
cated that a young offender might be given a longer custodial sentence on the
basis of his or her welfare needs. Similarly, where a young person’s rehabilita-
tive needs, rather than factors related to the offence, are determinative of sen-
tence, a youth in great need of treatment may be placed in custody for a lengthy
period of time, regardless of the nature and circumstances of the offence com-
mitted. The most striking example of this trend is found in the case of Protec-
tion de lajeunesse-220, where the Quebec Youth Court ordered a relatively
long period of open custody for a young person convicted of petty theft on the
basis that his rehabilitative needs would be better served by this longer term.
There is thus a fundamental conflict between the principle of special needs, as
interpreted by the courts, and the principle of “least possible interference with
freedom.” It is difficult to maintain any illusion that “least possible interfer-
ence” is a guiding principle in a system where youths are placed in custody for
relatively minor offences.
It is thus clear that the principle of “least possible interference” raises its
own set of interpretative difficulties. In addition to the vagueness of language
and the problems of interpreting the principle itself, it is difficult to see how
“least possible interference” may be balanced with the other principles under the
YOA. The problem of interpretative disparity with respect to each of the individ-
ual principles under the YOA is thus compounded with the difficulties in main-
taining consistency among the various principles. The meaning to be attached
551See supra note 548.
552See text accompanying notes 331-48. See also R. v. D.R.M. (1987), 79 N.S.R. (2d) 222 at 224,
126 A.P.R. 222 (S.C.(A.D.)), where the Nova Scotia Supreme Court (Appeal Division) upheld a
sentence of 12 months in open custody on the basis that the youth court judge had properly
addressed the interests to be considered, including general and specific deterrence.
553See text accompanying notes 178-94.
554Supra note 178.
555Supra note 183.
1993]
NOTE
1051
to “least possible interference” is ultimately dependent upon how other princi-
ples under the YOA are interpreted and prioritized. And in our view, “least pos-
sible interference” has been given a decidedly subsidiary priority.
Conclusion
In this Note, we have attempted to show that the guiding principles con-
tained in the YOA are ambiguous and fail to provide sufficient guidance to the
courts. This ambiguity is manifested in two ways. First, the Declaration of Prin-
ciple, which is supposed to make clear both the philosophical direction of the
Act and guide the courts in the application of specific provisions under the Act,
suffers from a lack of definitional clarity and internal consistency. Second, the
guiding principles used in different provisions of the YOA also lack clarity and
are subject to multiple interpretations.
Thus the difficulties faced by a youth court judge seeking to apply a par-
iicular provision of the Act are compounded by the need to balance the compet-
ing principles set out in the Declaration of Principle. In our view, this failure to
delimit and prioritize the principles relevant to each part of the Act has resulted
in the exercise of unwarranted judicial discretion and has led to inconsistency
in the interpretation and application of the YOA.
We therefore recommend that the legislators remove the Declaration of
Principle from the YOA. Rather than attempting to provide the courts with a
multiplicity of general and often conflicting principles, the legislators should
define precisely the principles applicable to each section of the Act. This, of
course, requires the legislators to clarify the philosophical approach they believe
the courts should be applying in relation to each section of the Act. In this
respect, we believe that the themes of decriminalization, deinstitutionalization
and diversion are as relevant today as they were when they were introduced by
reformers in the 1960s and 1970s.
Keeping these themes in mind, we recommend that the legislator redefine
the principles of “special needs,” “protection of society” and “least possible
interference with freedom” in relation to the particular policy objectives of spe-
cific sections under the YOA. In particular:
1. Special Needs – We recommend that “special needs” be redefined more
clearly as relating to “special protection” and not the need for rehabilitation. The
equation by some courts of “special needs” with rehabilitation is, inour opinion,
inconsistent with the due process orientation of the YOA and disregards the
many critiques made of the parens patrice model during the 1960s and 1970s.
Instead, the courts and the legislator should seek to give effect to the “special
needs” of youth by stressing the need, for example, for a more enhanced right
to counsel at the pre-interrogation stage of the justice process, a reduction in the
length and severity of sentences and the development of alternatives to custody.
2. Protection of Society – We recommend the removal of this principle from
the YOA. While the “protection of society” can be regarded as the central goal
of the criminal justice system, we submit that the principle is insufficiently pre-
cise as a guide for judicial discretion under specific sections of the Act. In par-
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McGILL LAW JOURNAL
[Vol. 38
ticular, we recommend that the legislator direct the courts not to equate “protec-
tion of society” with general deterrence or rehabilitative goals in relation to sen-
tencing or transfer to adult court. The transfer test under section 16 should be
based explicitly on the seriousness of the offence and not on criteria relating pri-
marily to the rehabilitative potential or dangerousness of the offender. In keep-
ing with this more limited standard for transfer, more explicit due process pro-
tections should be provided during the transfer hearing.
3. Least Possible.Interference with Freedom – This principle, which was a
guiding tenet for reformers in the 1960s and 1970s, has been de-emphasized to
such an extent under the YOA that it arguably no longer carries the force of a
guiding principle. We believe this to be a mistake and recommend that this prin-
ciple be given a higher priority and a more concrete application at three differ-
ent stages of the juvenile justice process. First, we recommend that this princi-
ple be employed to structure and circumscribe police discretion at the screening
stage. Second, we recommend that a high priority continue to be given to due
process protections at the alternative measures stage. Third, we recommend that
the courts seek at the custody stage to limit the length of custodial sentences and
to emphasize alternatives to incarceration.
