By Katherine Covell,
This is the fifth article in a continuing series exploring the rights of the child. Dr. Covell is a professor of
psychology at Cape Breton University, and the executive director of the Children's Rights Centre.
“If you’re old enough to do the crime, you’re old enough to do the time.” How many times has this statement been uttered in support of punishing children who come into conflict with the law? Calls for the harsher punishment of youth offenders are fueled by public misperceptions that the rates of youth crime are ever-increasing. Another myth is that current approaches to juvenile justice encourage youth crime through excessive leniency. The media focus on high-profile cases such as the brutal killing of Reena Virk in British Columbia appears to have convinced the public that Canada faces a crisis of violent youth crime.
The public’s response, seen in a number of surveys, polls, and petitions, has been to call for harsher sentencing for youth offenders, and the lowering of the age of criminal responsibility from the present 12 to 10 years. Against this backdrop, it can be difficult to call for more rights for youth in conflict with the law. But youth crime will only significantly decrease when we respect the rights of children in general and particularly the rights of youth in conflict with the law.
Patterns of youth crime
According to Statistics Canada, by 2006, the overall rate of youth crime was 6% lower than it was in 1996 and 25% lower than it was in 1991. Despite increased reporting and more aggressive zero-tolerance policies in schools, the number of youth charged with a crime generally continues to decrease.
Seventy-five percent of all youth crime is non-violent. Homicides and serious crimes are very rare among youth. The majority of violent crimes for which youth are charged are minor assaults; these include offences such as sexual assault level 1 which describes acts that are non-injurious such as unwanted touching. Such acts typically occur around or in school, and charges are brought as a result of zero-tolerance policies. Most crimes for which youth are charged are crimes against property, with mischief and theft being the most common.
In sharp contrast to the public’s perceptions of lenience, Canada’s record shows that our juvenile incarceration rate has been one of the highest in the world, higher even than the United States. Although 12 to 17 year-olds are much less likely to be charged with serious or violent crimes than are adults, our justice system generally has treated youth more harshly than adults. This would suggest an underlying assumption that punishment is effective in deterrence and reduces the number of repeat offenders. Since most youth in prison have learning difficulties or mental health problems, it is difficult to understand how punishment can be effective as a deterrent.
Which youth commit crimes?
It has been estimated that 75% of youth in prison have some type of disability. Many have significant learning problems, or emotional or behaviour disorders. Aboriginal youth in particular are highly overrepresented in the criminal justice system. Due to colonization, racism, poverty, and cultural upheaval, many of these youth have a history of family difficulties, of suicidal thoughts or attempts, and of substance abuse problems. About one in six are suspected or confirmed to have Fetal Alcohol Spectrum Disorder (FASD). FASD is a range of disabilities caused by alcohol disrupting the healthy development of the fetal brain. The intellectual, social, and cognitive deficits associated with learning disabilities, especially with FASD, increase vulnerability to criminal involvement, and make it difficult for those affected to adhere to system requirements and regulations. For these young people, detention centres have revolving doors.
Other youth in the justice system are those with a history of parental abuse and neglect, parental substance abuse, and parental criminality. As described in the previous article in this series, many of these children are on a developmental path that leads them through the child protection system to the justice system.
In essence, young people who come into conflict with the law are children whose rights have been infringed. They may have been exposed to toxic substances, such as alcohol, in utero, or their development has been compromised by the toxic experiences of parental
rejection, neglect, abuse, or harsh corporal punishment. They are children with little impulse control, with heightened aggression, with low self-esteem, and with impaired reasoning and decision-making skills. They are children in need of help.
The Youth Criminal Justice Act
By the late 1990s, the Canadian government was faced with growing evidence in two areas that led to the adoption of the Youth Criminal Justice Act (YCJA). One area concerned the gap between the high rates of incarceration of youth and the growing evidence that incarceration was more likely to increase rather than decrease crime. The common strategies of harsh punishments, sentences in youth correction centres, boot camps, and transfers to adult court were breeding repeat offenders and having no deterrent effect. The other area of evidence concerned the gap between Canada’s obligations to children under the Convention on the Rights of the Child and its deserved international reputation as having one of the harshest approaches to youth justice in the western world.
In response to recommendations from the National Crime Prevention Council (NCPC) and a parliamentary committee on justice and legal affairs, the federal government launched a new two-faceted strategy in 1998: the National Strategy on Community Safety and Crime Prevention. The NCPC rightly pointed out that the most effective way to prevent crime is to ensure healthier child development, stronger families, improved schools, and more cohesive caring communities.
For the prevention facet of the strategy, the government agreed to spend $32 million a year on community-based initiatives designed to prevent youth crime. Priority was to be given to initiatives targeting the known major risk factors for youth criminal involvement: FASD, child abuse and neglect, and ineffective parenting.
For the intervention facet, the government proposed a new youth criminal justice act. The government hoped the act would be of greater appeal to the child advocates who were concerned about the gap between existing practices and children’s rights, and also to the public who continued to clamor for harsher sentencing and more accountability among youth convicted of a criminal offense.
The Youth Criminal Justice Act (YCJA) came into effect in April 2003. Its central objectives are to reduce the incarceration of youth by using detention sentences only for those convicted of serious offenses, and to use community-based non-prison alternatives that focus on
rehabilitation where possible. Consistent with public demands, the YCJA has more emphasis on youth being held accountable for their offenses. Consistent with demands from the child advocacy community, the YCJA restricts the use of youth correctional facilities, and includes the Convention on the Rights of the Child in its preamble statement.
To date, neither constituency is satisfied. The public’s demands for a younger age of legal accountability and harsher sentences for young people continue unabated. Myths about the YCJA abound. Many community leaders and politicians complain that the new Act limits the capacity of police forces to deal effectively with young criminals, that youth are aware that they can commit crimes with impunity, and that the YCJA is contributing to a rise in youth crime because of its leniency. None of these beliefs is supported by the evidence. But they persist.
Confusing deprivation with depravity
Exceptional and dramatic cases are used as the basis of arguments for change. For example, in 2006 in Nova Scotia, the leniency of the YCJA was blamed for contributing to the death of Teresa McEvoy. Archie Billard, a 16 year-old with a history of offenses, hit and killed Ms. McEvoy while driving a car he had stolen. During the hearings it was reported that Archie Billard had suffered parental rejection and extreme family instability in early childhood, had been diagnosed with ADHD but had not been provided the necessary medication, had been diagnosed with a correctable learning difficulty which remained untreated, had suffered emotional abuse by his stepfather, had been told to leave home by his mother, and had been asked to leave school.
Despite this litany of rights violations and conditions that are highly predictive of youth criminal offending, the focus of the discussions remained on how to alter the YCJA to prevent youth offending. As sociologist Jordan Titus has pointed out, the public confuses childhood deprivation with childhood depravity.
Young people who have broken the law typically have a history of having their rights violated. They do not come into conflict with the justice system because they were offered too many rights. Ignoring or failing to understand this fact, some Canadians assume a youth is the author of their own misfortunes; that he or she is to blame. Their conclusion is that harsher penalties would be just.
Youth justice and the rights of the child
Child rights advocates complain that the YCJA, while a step in the right direction, is not consistent with the Convention on the Rights of the Child. Professor Myriam Denov of McGill University, for example, has noted that the YCJA does not include the best interests principle of the Convention as a guiding principle. She says that there is still excessive use of punishment and prison, and that there remains inadequate attention to meeting the special needs of youth. Canada’s child advocates say our juvenile justice institutions are characterized by racism, bullying, and violence. There are many differences among provinces and territories in how the YCJA is implemented, so that not all children are treated equally. There are difficulties ensuring the privacy of youth who offend, and youth are often detained with adult offenders. Finally, a child’s right to participate in decisions that affect him is not often respected.
The Convention on the Rights of the Child has a number of articles that specifically address the rights of youth who come into conflict with the law. Articles 37, 38, and 40 describe both the adult-like due process rights, and special due process rights that should be available to youth. “Due process” means that, like adults, youth have a right to legal assistance, the right to be informed of charges, and the right to be presumed innocent. They also have the right to be kept in separate facilities from adults, and to be able to maintain contact with family members. Of primary importance is that the Convention directs the use of prison or jail as a last resort only and states that youth should be held in correctional centres for the shortest amount of time possible. The Convention requires that the emphasis in the youth justice system be on providing rehabilitation and reintegration into the community. For children who have experienced abuse or neglect — typically the more serious youth offenders — the state has a responsibility to promote their physical and psychological recovery and social reintegration.
The YCJA is not in full compliance with these rights, but with more emphasis on rehabilitation and reintegration, the YCJA is a step in the right direction. Since its enactment there has been a sharp decrease in youth being placed in detention, and this bodes well for less crime in our communities. However, it will likely remain an inadequate step without public support. Public education is needed to dispel the myths about youth who offend and about the justice system. The public also need to be aware that punishing youth harshly increases rather than decreases criminal offending. Raising children in families, schools, and communities that respect their rights would do much more to reduce youth offending than any legislation or punishment.