Simon Rolston is a Vancouver-based writer and author of Prison Life Writing: Conversion and the Literary Roots of the U.S. Prison System.
In April, 2003, a revolutionary Canadian statute called the Youth Criminal Justice Act came into effect. It transformed the youth criminal justice system and improved the lives of countless young Canadians. Few pieces of legislation have had such far-reaching, undeniably positive results. But generally, Canadians know little about this remarkable piece of legislation or what can be learned from its achievements.
Before the passage of the YCJA, under the Young Offenders Act, Canada had one of the highest youth incarceration rates in the Western world – even higher than the United States. There were several reasons for the swelling of youth custody: Sentences were often unfair and disproportionate to the crime committed; half the juvenile cases before the courts were for minor offences, such as breach of curfew; and youth were often being detained for non-criminal reasons – if someone was unhoused, for example, they could find themselves in detention.
What now guides the youth criminal justice system is an anything-but-lockup philosophy. This governing principle is boldly stated in the YCJA’s preamble: The goal is to “reduc[e] the over-reliance on incarceration for non-violent young persons.” Enshrined is an acknowledgment that custody doesn’t work – or, at least, it’s not as effective as less interventionist approaches that focus on rehabilitation and reintegration.
The results of this shift in judicial philosophy have been incredible. The passage of the YCJA has resulted in a 95-per-cent decline in youth custodial sentences, while youth carceral facilities have closed across the country.
This incredible transformation happened because the YCJA emphasizes restraint at all levels of the criminal justice system, from police intervention to charging, detaining and sentencing, and by using “extrajudicial measures” to divert young people away from the traditional court system. Diversion was an option under the Young Offender’s Act, but was woefully underused. By contrast, the YCJA emphasizes alternatives to charging young people with crimes. These vary in severity and can include a police warning, an official caution letter from the prosecutor, a community program or an “extrajudicial sanction” that requires a young offender to accept responsibility and agree to a set of terms and conditions.
If a young person is arrested in Canada today, they typically no longer undergo the process of being charged, sent to court and sentenced. Instead, police and prosecutors first determine whether an extrajudicial measure would suffice to hold the youth accountable. And most of the time it does.
Let’s say a young person is arrested for shoplifting. Rather than introduce a charge, the police can choose an alternative to the court system. The police might convene what the Act calls a “conference,” wherein members of the local community advise the police as to what’s best for the youth. They might recommend ways that the young shoplifter could make amends, and even suggest a “restorative” conference wherein the shoplifter meets with the shop owner (if the owner feels comfortable). The conference is a uniquely humble gesture since it suggests that the justice system might not always know what’s best for someone who’s done wrong, and invites the community to help bring a young person back into the fold.
Now, if a youth has committed a serious crime (e.g., a crime that involves bodily injury), they can be charged and go through the court process. But – and this is important – with fewer youth being processed through the courts thanks to extrajudicial measures, more time and resources can be devoted to cases involving serious crimes.
Some people understandably worry that decarceration could make Canadian communities less safe. But over the past 20 years, the youth crime rate has dropped by 70 per cent according to Richard Barnhorst, a former Department of Justice lawyer who helped develop the YCJA. Closing carceral facilities works, and surprisingly well.
It’s unclear whether the changes made to the youth justice system could be applied to the Criminal Code and have a similar effect on the adult system. Youth are understood to be less accountable in committing a crime because they’re not as intellectually developed or mature, and so the system is more sympathetic.
And yet, there’s historical precedent for the Criminal Code being adapted based on successes in the youth system. In 1985, the Young Offender’s Act formalized a kind of diversion called “alternative measures.” In 1996, based in part on the youth system’s experience, similar methods were introduced to the Criminal Code. Legal scholars have suggested that the YCJA’s restraint in charging, its method of using the courts, and approaches to pretrial detention and sentencing might all work in the adult system and achieve similarly positive results. This is an exciting opportunity – one that Canada should explore further.