A short while back, I wrote an article about young people in Texas and Manitoba being jailed for missing school. In Texas, kids are being put on court orders for missing school; then fined for breaching their orders; and then sent to prison when they can’t pay the fines. As a youth defence lawyer I was not surprised because my experience in Manitoba was so similar.
Melina Chohan, a criminal lawyer with Tom Rees & Company, recently had a case where the prosecution asked a youth court to sentence a young person to approximately 50 days of custody, followed by three months of house arrest for four charges relating to breaching her court order for staying at her boyfriend’s house over the weekend, failing to report to her youth worker, and missing school programming. The young person had been in custody for just over 50 days before her matters could be heard. The prosecution wanted the 50 plus days she spent in custody to be noted on her record, and for her to receive a three month deferred custody order (house arrest order) for a total of 140 days.
Criminal lawyer Melina Chohan argued that the court should not note the 50 days in custody on her record. Ms. Chohan was concerned that the young person’s criminal record would reflect more punishment than a young woman should receive for missing school, missing appointments and not returning home. Defence lawyers worry about criminal records because the court and prosecution use a person’s criminal record as a starting point for determining their next sentence.
Ms. Chohan told the court about the young woman’s background in an attempt to identify the underlying causes of the breaches. She argued that further jail would not address those underlying causes, and would be inconsistent with the purposes and principles of the Youth Criminal Justice Act (YCJA).
My view is that the YCJA agrees with Ms. Chohan. The YCJA was introduced, in part, to reduce the system’s over-reliance on custody for non-violent young people (YJCA Pre-amble). The YCJA demands that all available sanctions other than custody that are reasonable in the circumstances be considered by the court (section 38(2)(d)). It also states that the punishment must be the least restrictive sentence that is capable of achieving the purpose set out in the act (section 38(2)(e)(i)).
Parents don’t send their kids to jail for staying at their boyfriend’s house without permission, or missing school programming and important appointments. Most parents wouldn’t ground their teenager for 140 days either. Responsible parents are more likely to try to identify the underlying causes of their child’s behaviour, and then address those issues through counselling, support, and effective programming.
Instead, our system sends kids to prison to live with other troubled kids, in close quarters, without their family support, their school or their community. Social norms are different in jail. There are more assaults, more emotional outbursts and more threats in jail. The young person who breaches their curfew must live with kids charged with murder, assault, drug dealing, gang related violence and firearms offences and many other types of crimes. Jails provide kids with more gang contacts than any other place in our society. No reasonable parent would send their child to jail for behaviour like staying at their boyfriend’s without permission or failing to check in.
In the case from above, the Judge agreed with Ms. Chohan that a further period of house arrest was inappropriate and inconsistent with the YCJA. The Judge noted only some of the time the young person had spent in custody and released her.
The objective of the youth criminal justice system must be to protect society in the long term. The system should identify the underlying causes of the young person’s criminal behaviour and determine the most effective way to address those issues. The government should look to experts in child development and psychology and to other professionals to develop effective programming. They should use empirical evidence to evaluate the programs to make improvements, and keep statistics to measure success.
Income disparity, poverty and other determinants of youth criminal involvement must be addressed through community development and properly funded programming instead of the criminal justice system to have a meaningful impact on youth crime rates. Youth programming, community centre and drop-in hours and employment opportunities all contribute to youth crime rates, none of which fall within the jurisdiction of the youth criminal justice system.
The politics of a “Tough on Crime’ agenda has no place in youth justice. Politics and justice is already a dangerous combination, but the potential for injustice increases when the subjects of the system are children. A commitment by government to properly and consistently fund community development and youth programs, and to reduce income disparity and poverty in general, is the only way to have an impact on youth crime rates. The Crown should stop asking the court to send young people to jail for breaches of court orders like missing school, returning home late, and missing appointments with workers. It is ineffective and counterproductive. It is making the lives of the young people involved worse, and making society more dangerous in the long term.
* It was pointed out to me that I did not mention that the young person from above had many breaches of court orders. She had a long record for breaching. It was not the first, second or third time, she had breached many times before. I will also point out that no prosecutor would ask for such a long a jail sentence on a young person’s first conviction for breaching their order. The point I’m trying to make is that jail terms don’t seem to be addressing the underlying causes of many young people’s criminal behaviour, and instead making it worse.
note: the information on this page is not legal advice