The Huffington Post recently reported that children in Manitoba are being jailed for longer because the child and family service system has no foster placements for them.
Darlene MacDonald says she has received calls from judges who want to release youths from police custody, but can’t because they don’t have anywhere to go.
She says judges have said they don’t want to see youth put up in hotels, so the children remain in jail until Child and Family Services can find somewhere for them to stay.
As a youth lawyer in Winnipeg, articles like the one above do not surprise me. Young people are released from custody to live in hotels on a regular basis. Often, social service agencies have very little notice that a young person is being released. They are forced to scramble to either keep empty beds open for young people who are still in custody, or find themselves running out of beds for children who have been released.
Unfortunately the problem is more complicated than a lack of placements for young people satisfactory to Youth Court Judges. A youth criminal justice system starts from the vision or objectives of the government, and thereby the people of Canada. How do we want to treat our troubled youth, what results are we aiming for, and how much are we prepared to spend to have the society and community we want?
In order to discuss youth incarceration, it helps to understand the recent history of our youth justice system in Canada. The Youth Criminal Justice Act (YCJA) replaced the Young Offenders Act in 2003. The legislators at that time recognized that custody was not being used properly.
The following is from the pre-amble to the YCJA. A pre-amble is not law, but is supposed to be used to assist in the interpretation of the legislation by giving the Court a window into the minds of the law makers at the time the law was being drafted.
AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention [custody] for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons;
The bolded section of that statement was an admission by the Government of the time that non-violent young people were being incarcerated too much and/or too long. The new YCJA sentencing regime and subsequent case law limited the use of custody for young people and didn’t allow a Court to jail a youth in order to denounce their conduct or deter them from committing further offences.
Section 29(1) of the YCJA further limited the use of custody by separating social services for children and the justice system.
Detention as social measure prohibited
29. (1) A youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures.
Note that keeping a young person in custody to avoid them being placed in a hotel is inconsistent with section 29(1).
There were also sections that limited the use of custody by the Court for young people in situations where the youth was convicted of violent offences, or had a record for breaching multiple court orders. (click here to see the old section 39)
It was clear the Young Offenders Act’s over-use of custody had failed as a youth justice system and the YCJA was a response to the issues created by jailing high numbers of young people for long periods.
The YCJA was amended by the Conservative Government on October 23, 2012. The amendments were aimed at sentencing provisions and ultimately opened the door for Courts to sentence young people to custody more often, and for longer periods.
One amendment added specific deterrence to the YJCA, meaning that the Court was now permitted to use deterrence in and of itself as a justification for jailing a young person.
38 (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conduct, and
(ii) to deter the young person from committing offences.
In my experience, the addition of deterrence as a youth sentencing factor has had a significant impact on the use of jail for young people. A good example is a situation where a foster child does not return home for their court ordered curfew while having a record for doing the same. The Court can now send them to jail for longer to “teach them a lesson”.
Another Conservative amendment made it easier to sentence a young person as an adult. The use of adult sentences has increased in Manitoba greatly in the past two years. The issues with sentencing young people as adults are many but a significant one is that young people are dynamic, and who they were yesterday isn’t the same as who they are today, or who they will ultimately become. A multiyear adult sentence fails to recognize this fact.
As a larger proportion of young people are sentenced as adults, the purpose of separating the adult and youth criminal justice systems is reduced. It is a recognized principle in youth law that young people should be incarcerated separate from adults, and treated differently with enhanced protections.
The YCJA recognizes that young people are different from adults.
The following is from Section 3:
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should
(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and
Young people depend on adults for more than just food and shelter. They depend on grown-ups to provide examples and explanations about important life skills, like acting appropriately in different social situations and how to resolve disputes between people. The YCJA also mentions reduced maturity, which anyone with a child or teenager knows about already.
Young people do experience the passage of time in a different way than older people and the YCJA says that a Youth Court Judge should consider that when making decisions about youth.
Ultimately, the Conservative amendments to the YCJA of October 23, 2012 took the youth criminal justice system a step back towards the Young Offenders Act.
It’s important to remember that custody is the most harsh punishment our justice system allows. If a young person commits murder, they go to jail. If a young person commits a violent gun crime like home invasion with a firearm, they go to jail. If a 13 year old comes home late for her curfew, or misses an appointment with her bail supervisor she goes to the same jail.
It makes more sense that jail is reserved for more serious crimes, and that other measures should used for teenagers who don’t go to their appointments or come home late. It also makes sense that a jail sentence be the end of a long road of repeated unsuccessful attempts to correct the young person’s behaviour, not the starting point for discipline.
Children in Manitoba spend time in custody at the Manitoba Youth Centre and Agassiz Youth Centre for a variety of reasons. Unfortunately, many for crimes like theft, breaching probation or bail conditions, marijuana possession, or mischief breaking windows or other types of vandalism. The Crown asked for 90 days of custody for a single breach of probation for one of my youth clients this year, a situation that arises all too often.
Canadians need to ask themselves what kind of justice system we want for our children. I want a system that is individualized, and specializes in helping kids to become active members of their communities. I want a system that actually tries to determine the underlying causes of a particular young person’s offending and attempts to assist or support in correcting or resolving those issues. I don’t want a system that jails a 13 year old who was late returning home for her curfew, or stops reporting to her probation order.
Difficult family situations, poverty, hunger, drug and alcohol use and prejudice are the issues that seem to affect my youth clients. Funding for youth workers, youth programming, sports and art programming, Child and Family Services family enhancement services and impoverished parents would be more effective in the long term to address underlying issues of youth crime than lengthy jail sentences.