SR Vol 27 No 3, July 2009 - Nova Scotia Barristers' Society

to subject youth to an adult sentence and would make protection
of the public one of the primary goals of the legislation - all would
contribute further to an erosion of the fundamental principles of
juvenile justice. The former Conservative provincial government
embraced these six recommendations and began a political campaign
to garner public support to petition for federal revisions.
While the provincial Minister of Justice claimed to have support
from thousands of Nova Scotians along with mayors and town
councils representing 60 per cent of Nova Scotians, neither research
evidence nor the lessons of history would support any of these
proposed revisions as sound policy or good law. Rather, the proposed
revisions represent political opportunism and an example of a bad
case leading to bad law. Over the last 25 years, persistent media
coverage of exceptional youth crime cases has resulted in a general
public fear of youth and, like their counterparts in the United States,
some Canadian politicians have attempted to garner public favour
by pandering to these fears and promising to “crack down” on crime,
particularly youth crime.
For the most part, the YCJA is a good piece of legislation to the
extent that it attempts to address a number of problems created by
the range of contradictory principles of the YOA. Guiding principles
have been simplified in the YCJA and more specific principles are
established for application at particular decision making points.
Notably, deterrence is not one of these principles nor has it ever been
a legislated sentencing principle in the history of the juvenile justice
system in Canada. Under the YOA, appeal court judges disagreed
about the relevance of general or specific deterrence as a principle of
sentencing in youth cases [R. v. G.K. (1985), 21 C.C.C. (3D) 558
(Alta. C.A.); R. v. O. (1986), 27 C.C.C. (3D) 376 (Ont. C.A.)] and
now with the YCJA there is more agreement among judges that it is
not a relevant sentencing principle (Bala and Anand, 2004, p. 260).
The current proposal to include deterrence as a principle in
sentencing is another way of eroding the system. The John Howard
Society has addressed this issue and recommends that deterrence and
denunciation should not be included as sentencing principles in the
YCJA for three reasons. First, there is simply no evidence that “...
deterrence or punitiveness reduce crime or reoffending.”(2008:12)
and more evidence that it has a negative impact on sentence. According
to Madame Justice Charon, when general deterrence is applied as a
factor in sentencing it “... has a unilateral effect on the sentence....
it will always serve to increase the penalty or make it harsher.” R. v.
B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941, 2006 SCC 27 as cited in
Knudsen and Jones, 2008: 13). Furthermore, general deterrence as
a principle of sentencing is a contravention of principles of juvenile
justice as laid out by the UN Convention on the Rights of the Child
and the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty. The imposition of harsher sentences for the purpose
of deterring future crime contravenes principles of proportionality,
the child’s best interest and minimal interference with freedoms. This
not only constitutes another erosion of the fundamental principle of
juvenile justice, it also does not make for “good law.”
Similarly, the proposed changes to pretrial detention will not make
for good law and will also further erode the juvenile/youth justice
system. One of the reasons for custody and detention provisions in
the YCJA was the overuse of custody and detention under the YOA.
Furthermore, while the YCJA does seem to have had a reducing effect
on custody sentences, we have not yet seen a reduction in either high
rates of detention, jurisdictional variations in the use of detention or
the overuse of detention for marginalized and minority youth. The
proposed changes are more likely to increase the use of detention and
then, because those held in pretrial detention are more likely to receive
custody sentences, rates of custody sentences will likely increase in the
long run. It is also not clear why strengthening detention provisions
were even a concern for the Nunn Commission. In the youth case
that precipitated the inquiry, a Nova Scotia court had found that there
were sufficient grounds to hold the youth in question in detention but
the court nonetheless made a responsible person order (Department
of Justice Consultation Paper, 2008:31). In December 2008, the
federal Department of Justice put out a discussion paper based on a
thorough review of the evidence regarding pre-trial detention. Based
on this evidence, pretrial detention issues, for the most part, have
more to do with reducing discretionary decision-making, clarifying
aspects of s. 29 and s. 39 of the YCJA and addressing the effectiveness
of conditions of release.
These are issues aimed at making better law because these issues
have the potential for progressive change, ones that can be expected
to address regional and jurisdictional variation and disparity. This
approach to reform looks for inconsistencies, problems and weaknesses
in the legislation and its administration, rather than looking for
ways to change the fundamental purpose of the system in the hopes
that something about the law will stop youth crime. Youth crime
issues are better addressed in the context of broader youth issues and
government funding.
Over the last 25 years, most cases involving violent youth crime
have led to claims that the legislation is ineffective. It is believed that
somehow, if the legislation was not so “lenient” the crime would not
have occurred. Interestingly, while in Scotland recently researching
their law reform process in the 1960s that led to the abandonment of
a criminal justice framework for responding to youth crime in favour
of a social welfare approach, a particularly violent and horrific crime
occurred involving the rape and violent murder of a young woman by
a 15-year-old boy. Scottish newspapers were full of stories for at least
a week about the crime, the offender, the victim and public reaction.
Based on my experience in Canada, I expected to hear outcries
through the news media for changes to their legislation. Much to
my surprise, not one voice was raised in criticism of the legislation or
system. Rather, the public issues in the news media revolved around
discussions about “What went wrong?” “Who dropped the ball?”
“How did this youth fall through the cracks?” In other words, the
Scottish public seemed to have faith in their 40-year-old system and
method of responding to youth crime.
One of the goals of our justice system is to maintain public confidence
in the youth justice system and its administration, yet it seems
painfully apparent that more tinkering with a system that has been
under attack and modified repeatedly over the last 40 years is not
about to change public attitudes or for that matter, the incidence of
youth crime. Revisions should be entertained that will solve issues
with the administration of youth justice and the system’s failure to
provide for the needs of many youth in the system. Revisions should
also honour the fundamental precepts of a juvenile justice system and
international standards rather than reflect ill-advised political agenda
and rhetoric.
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