CRJS Exam #5 PDF

Unit #5 Key Terms & Concepts Administrative segregation Refers to solitary confinement. Used as a management tool in correctional institutions for the protection of a prisoner (from self or others) or as punishment for institutional infractions. (p. 358) Aftercare Any range of programming and servic...

Unit #5 Key Terms & Concepts Administrative segregation Refers to solitary confinement. Used as a management tool in correctional institutions for the protection of a prisoner (from self or others) or as punishment for institutional infractions. (p. 358) Aftercare Any range of programming and services provided after a young person has completed his or her court-imposed sentence or extrajudicial measures contract. (p. 361) Boot camp In the correction system, a place of confinement where programming follows a militaristic regime. (p. 367) Cognitive skills In the field of corrections, it refers to the ability of people to develop cognitive solutions to their problems rather than to react emotionally and physically. (p. 366) Conditional supervision order Requires a person under supervision to abide by particular conditions set by the court (e.g., attend drug or alcohol rehabilitation programs). (p. 348) Correctional programming A range of structured activities within a correctional system, designed to rehabilitate, educate, train, and otherwise facilitate a person’s reintegration into society. (p. 364) Correctional services In this text, it refers to custodial institutions and probation services for youth offenders in Canada. (341) Corrections The part of the justice system that is responsible for carrying out the sentence of the court and/or alternative and extrajudicial measures. Deferred custody and supervision order A sentence option created by the YCJA that is similar to “house arrest” sentences for adults. (p. 350) Determinate sentences Sentences with a stated minimum and maximum term. (p. 373) Deterrence The theory that certain and speedy punishment will discourage or prevent future criminal behaviour, both in general and in a specific manner. (p. 317) Extrajudicial sanctions Used under the YCJAwhen cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs. (p. 271, 311) Gendered expectations What is expected of a person because of his or her biological sex characteristics. (p. 331) Guardian A person who has been given legal authority over and responsibility for another person. Incapacitation Basically means to deprive a person, so to put someone in prison is to incapacitate her or him in an absolute and fundamental manner. (p. 317) Indeterminate sentences Sentences that are not absolute or definite. (p. 373) Interim Release Provisions that allow an arrested person to be released into the community, under specific conditions, while waiting for a court appearance; commonly referred to as bail. (p. 297) Jurisprudence The science and philosophy of law and its practice. (p. 311) Learning disability Refers to a number of disorders that may affect the acquisition, organization, retention, understanding, or use of verbal or non-verbal information. (p. 372) Legal advocate The role of a lawyer in making decisions and acting in the best interest of his or her client, to ensure that the client has every possible legal advantage. (p. 312) Life skills The behavioural, emotional, and philosophical skill set that one acquires to enable functioning in the social world. (p. 364) Multisystemic therapy A form of rehabilitative integration that focuses on the entire family, not just on an individual. (p. 369) Open custody A form of youth custody under the YOA that required fewer restrictions on movement, both within and outside an institution, than was required for secure custody. (p. 345) Presumptive offence Under the YCJA, a serious violent offence, or any other violent offence for which an adult would be liable to a prison sentence of more than two years. (p. 308) Pretrial detention The holding of an accused person in a prison or detention facility prior to a court appearance or trial, or while awaiting sentence; sometimes also referred to as remand. (p. 297, 341) Reconciliation An important component of the mediation/healing process, based on the belief that a productive response to crime is to encourage all affected parties to participate in conflict resolution. (p. 274, 387) Rehabilitation A correctional philosophy based on the belief that appropriate treatment programs can reform or change an individual. (p. 317, 369) Rehabilitative treatment Rehabilitative programs based on assumptions of correcting individual pathologies. (p. 369) Reintegration A correctional concept referring to policies and programs designed to reintroduce offenders back into their communities as productive, participating, law-abiding members. (p. 53, 317, 386) Remand To hold an accused person in a prison or detention facility prior to a court appearance or trial, or while awaiting sentence; sometimes also referred to as pretrial detention. (p. 341) Restoration In the context of a restorative justice framework, these related concepts refer to restoring balance by repairing harms. (p. 317) Retribution Punishment for an offence committed. (p. 317) Secure custody A form of youth custody under the YOA that required more restrictions on movement, both within and outside an institution, than was required for open security. (p. 345) Sentencing conference A meeting of a group of professionals to make recommendations to the court about appropriate sentences for individual cases. (p. 316) The principle of proportionality Training schools A common term for juvenile correctional institutions before the introduction of the YOA. (p. 344) Study Questions: Describe characteristics of the youth court population in Canada over time. Boys make up the greatest proportion of youth going to court, but their numbers are declining compared with girls. In 2003–2004, approximately 80 percent of youth court cases involved male youth, but by 2011–2012, their numbers had dropped to three-quarters. Girls’ proportionate representation increased from 18 percent in 1992–1993 to 27 percent in 2006–2007 and had declined to 23 percent by 2011–2012. Older youth (16 to 17) have always been more common in youth court than those aged 12 to 15. In 2003–2004, 58 percent of the caseload were 16 to 17, and in 2011–2012 these older youth accounted for 61 percent. It would appear that as charges get more serious, the youth court population gets older. However, this pattern is only true for boys. Girls have always been charged and sent to court at younger ages than boys. In 2006–2007, 53 percent of the girls in court were under 16, and 15-year-old girls made up the largest category, at 23 percent. In 2011–2012, the number of girls in court aged 16 to 17 was only slightly greater than that of those aged 12 to 15. Compare and contrast the principles of sentencing under the JDA, YOA, and YCJA. Youth Serving Adult Sentences: As with the YOA, the YCJA required young people who were sentenced to custody to be held separately and apart from adults, but this provision did not apply for youth with adult sentences. Bill C-10 changed that, and it is now a requirement that all sentenced youth under the age of 18 will serve their sentences in a youth facility. Nonetheless, when a youth has been sentenced to youth custody and reaches the age of 18, the provincial director has the power to request that the remainder of the youth sentence be served either in a provincial correctional facility for adults or in an adult penitentiary if the court considers it to be in the best interests of the young person or in the public interest or if the youth has two years or more remaining on his or her custodial sentence. This section of the act essentially allows the youth justice court to authorize a provincial director to place a youth serving a youth sentence in a federal penitentiary for adults. Pretrial Detention: YCJA and Criminal Code Both the YCJA and Criminal Code provisions regarding judicial interim release apply to young offenders. The YCJA requires that young people held in detention prior to trial be detained separately from adults, unless no youth facility is available or it would be unsafe to do so. This does not apply to youth who are between 18 and 20; the YCJA allows for them to be held in adult provincial facilities. The judicial interim release provisions of the Criminal Code require that a young person be brought before a youth court judge or justice of the peace within 24 hours. In practice, most detained youth have their first court appearance within 72 hours of arrest. At this hearing, the prosecutor must show why the accused should be held in custody. The Criminal Code provides two reasons for pretrial detention: primary grounds and secondary grounds. Primary grounds are invoked when the court is convinced that custody is necessary to ensure that the youth will appear in court. Secondary grounds are invoked when the court believes that custody is necessary for public protection. According to a Department of Justice discussion paper on the use of pretrial detention for young offenders, the Criminal Code also allows tertiary grounds for detention. This refers to situations where the judge may consider that “… detention is necessary in order to maintain confidence in the administration of justice….” Case law under the YCJA has indicated that the tertiary grounds should be rarely used. An important pretrial change created by the YCJA is that section 29(1) specifically prohibits placing a young offender in pretrial detention “as a substitute for appropriate child protection, mental health or other social measures.” Pretrial Detention: YOA The YOA introduced the “responsible person” as an option to detention for the courts, and the YCJA kept the concept and turned it into an obligation of the court. Before the court can detain a young person, it is mandatory that the court investigate as to the availability of a responsible person. The court may decide to release a young offender if it is satisfied that a responsible person is willing to assume responsibility and control of the youth. This responsible person, who could be a parent, some other adult relative, or a family friend, makes an application for release and is examined by the court to determine if he or she is a suitable alternative to custody for the young person. A youth may also be released if a responsible person agrees to forfeit money or some security if the young offender violates the conditions of release. The YCJA also allows an accused youth to refuse this type of release. Sentencing Principles Four basic principles govern sentencing in adult criminal cases: retribution, deterrence, incapacitation, and rehabilitation. Retribution is based on the notion of moral accountability and the idea that persons who intentionally harm others should suffer negative consequences so that wrongs can be righted. An additional component of this principle is the proportionality principle—the belief that justice is best served if the consequence is in proportion to the crime. So, for example, the death penalty would be an inappropriate sentence for car theft or shoplifting. For advocates of crime control, retribution is interpreted as punishment and the proportionality principle often means vengeance or “an eye for an eye.” Deterrence: a theory that originated in the 18th century. It is based on the assumption that people will not engage in certain activities if the potential costs of doing so are greater than the potential gains. Deterrence may be general or specific/individual. Negative consequences directed at an individual may be designed to dissuade all members of a society from engaging in similar actions (general). Sanctions may also be designed to prevent a particular person from reoffending (specific/ individual). Incapacitation refers to measures taken, such as a prison sentence, to deprive a person of the opportunity to commit an offence. Rehabilitation philosophies began to emerge toward the latter part of the 19th century and are based on the assumption that people can change their behaviour if given an opportunity to do so. Rehabilitation may or may not involve particular treatment strategies or programs. The restorative justice principles of restoration, reconciliation, and reintegration are relatively new concepts just beginning to work their way into sentencing discourse and practice. While some of the “older” principles, such as deterrence and incapacitation, are based on assumptions that punishment and retribution are the most effective means of stopping criminal behaviour, restorative justice principles assume that the most effective response to crime involves policies and practices that attempt to repair the harm done to the individual and the community by criminal activity. As we will see in the discussion that follows, sentencing options in the YCJA incorporate these principles as objectives in their own right, and in a way that serves to redefine is also required to look beyond the offence and consider the youth’s intention, the degree of involvement in the offence, and the degree of harm caused by the action. Youth Sentences Section 42(2) of the YCJA allows for a wide range of youth sentences, from a simple reprimand to the most severe (as measured in terms of loss of freedom)—intensive rehabilitative custody with community supervision. The youth court has far more sentencing options than were available under the YOA and judges can choose any one or a combination of sentences for a convicted youth. The major sentencing categories from the YOA that remain for YCJA sentencing are absolute and conditional discharge, fine, community service order, probation, treatment order, and custody. They are discussed below, along with the new YCJA options and the most recent court statistics available. Some sentencing options such as absolute and conditional discharge, restitution, prohibition, seizure, forfeiture, compensation are combined with others, such as an essay, apologies, and counselling under the category “other.” Youth may also receive combinations of sentences; for example, probation is often accompanied by a community service order. Non-Custodial Sanctions Judicial Reprimand: A reprimand, which did not exist under the YOA, simply involves a stern lecture from the judge; it technically does not constitute a “sentence.” A reprimand would likely be considered suitable for first-time offenders facing a minor charge, where it is believed that experience with police processing and the court is sufficient to meet accountability requirements. It, along with the absolute discharge, does not result in a criminal record. This means that a youth would not appear in a criminal record check. Absolute Discharge: An absolute discharge is also a sentence with no criminal sanctions. As with the reprimand, the young person, even though found guilty, is free to leave the court with no penalty. This disposition is also given most often for very minor offences when the young person has no prior record. In 1999–2000, 2 percent of court cases resulted in an absolute discharge. No data has been reported for recent years. Conditional Discharge: The 1995 YOA amendments, Bill C-37, introduced a new disposition—the conditional discharge—and it is retained by the YCJA. The conditional discharge has always been available as a sentencing option in the adult system, where it is generally viewed as similar to probation, but more lenient. The conditional discharge provides for conditions similar to those outlined in a probation order. After successful completion of the terms of the order, however, the person’s criminal record is “erased”; in other words, the person is discharged without a conviction on his or her record. Such a person who applies for employment and is asked whether he or she has any prior convictions can legally respond in the negative. In the youth system, a conditional discharge similarly erases a person’s criminal record so that she or he can no longer be viewed as a convicted offender. It is most commonly used in combination with probation orders. Fine: The court may impose a fine not to exceed $1,000, but it must consider the youth’s ability to pay. Under a fine option program, young people can elect to do community service work if they are unable to pay a fine. The YCJA also offers the court a range of fine-related sanctions: compensation to be paid for loss of property, income, or support (with different rules in the province of Quebec); restitution involving an order to restore or replace stolen or damaged property; restitution that encompasses an order to pay someone who may have purchased stolen property from the young offender; and compensation in kind for loss, damage, or injury caused by the young offender. Seizure or forfeiture of property can also be imposed as a disposition separately from a fine under the YCJA. Community Service Order: The court may order young people to perform unpaid and supervised community service for a period not to exceed 240 hours, with 12 months allowed for completion. Community service orders (CSOs) are often operated through probation offices. Arrangements are made for young people to work for food banks or other charitable or non-profit organizations, such as the Society for the Prevention of Cruelty to Animals. Most commonly, a CSO is attached to another, more serious sentence. It is used most often for property and drug offences. Probation: The most common sentence or disposition in youth court is probation. It was a provision under the YOA and continues to be so with the YCJA, but its use is on the decline. This may be because custody now automatically includes a period of supervision, while under the YOA a custody sentence had to include a period of probation to ensure supervision after release. Also, some cases that may have received a probation sentence in the past may now be processed through extrajudicial measures or sanctions. Probation is used for crimes against the person as often as for property offences. A probation order is a means of controlling and supervising a young person’s behaviour while he or she is in the community. There are sanctions for non-compliance with the conditions of probation, in that breach of probation constitutes a Criminal Code offence. Under the YOA, there were two mandatory conditions in all probation orders: (1) to “keep the peace” and “be of good behaviour” and (2) to appear in court as required. The YCJA adds two new mandatory conditions: (1) prohibition from possessing or purchasing weapons, ammunition, and explosive substances and (2) any other conditions necessary to “secure the young person’s good conduct” and prevent further criminal activity. In addition, young people may be required to report to a probation officer on a regular basis, maintain employment, go to school, reside at a particular residence, report any change in address, and/or remain within the court’s jurisdiction. The court often orders a youth not to associate with certain people and to avoid certain neighbourhoods, obey a curfew, abstain from drugs and alcohol, and/or attend treatment or counselling programs. Prohibition orders can also be imposed under the YCJA independently of a probation order. Community service orders are often included as a condition of probation. Treatment Order/Intensive Support and Supervision Order: Section 22 of the YOA allowed the court to order youth detained in a hospital or other facility for the purpose of treatment, providing he or she gave consent. The requirement of consent for treatment was a contentious aspect of the YOA, and the 1995 amendments to the YOA (Bill C-37) repealed sections 22 and 20(1)(i) of the act. Treatment as a disposition was no longer allowed under the YOA after that date. While Fetherston (2000) argues that YCJA principles move the youth justice system even further from a welfare model by requiring similar sentences for similar offences and sentences proportionate to the offence the act does promote rehabilitation as a sentencing principle and provides a new sentencing option that is potentially rehabilitative: an intensive support and supervision program. This disposition is similar to probation in that it is served in the community and comes with conditions attached. The difference is that this sentence is intended to provide closer monitoring and more support and services than probation. Unlike probation, the YCJA allows provinces to decide if they wish to offer this sentencing option. Non-residential Attendance Order: Also new with the YCJA, the court may order a youth to attend a non-residential program for up to 240 hours. This too is a potentially rehabilitative sentence and other conditions may be attached to the order, such as to refrain from alcohol or to not associate with certain persons. As with the intensive support and supervision order, these two dispositions, as sentences, sidestep the thorny issue of consent to treatment. Similar to probation, there are sanctions attached to non-compliance with the orders of the sentence, but here the charge is “failure to comply.” Custodial Sanctions Under the YOA, custody sentence options were limited to two choices: the court could sentence a young offender to one of two levels of custody—open or secure—which differed in terms of restrictions on freedom of movement, level of supervision, and access to the community. The YCJA has considerably expanded these choices, perhaps because, as we will see in Chapter 10, the use of custody under the YOA was a contentious issue. Those advocating a crime-control or justice model wanted more and longer custody sentences for some young offenders, while welfare and restorative justice model advocates expressed alarm over the excessive use of custody by the courts. The YCJA has addressed this issue in a number of ways. First, section 39(1)(a) through (d) of the YCJA specifies that a young person cannot be sentenced to custody unless she or he has committed a violent offence, has already received a non-custodial sentence and failed to comply with that, has committed an indictable offence for which an adult would receive a federal prison term, or has committed an indictable offence. In this latter case, the court is required to argue that there are aggravating circumstances that justify a custody sentence and that a non-custodial sentence would violate the sentencing principles of section 38. Sentence Review: There are no changes in the YCJA from the YOA regarding review orders. All custody sentences of greater than one year in length must be reviewed each year by the youth court, and the youth or a parent may request a review after six months. When the custody term is less than one year, the youth or parent may request a review after one-third of the sentence (with a minimum of 30 days). Reviews of non-custodial sentences and of the level of custody imposed may also be requested, and they must be initiated by the youth, parent, or Crown or provincial director after six months of the sentence has been served (or earlier, with permission from a youth court judge). Section 94(6) of the YCJA outlines the grounds for reviewing a young offender’s sentence: the youth has shown progress with respect to rehabilitation; the circumstances that led to the youth’s sentence have changed materially; new services or programs are available that were not available at the time of the youth’s sentence; the opportunities for rehabilitation are now greater in the community; or any other ground that the youth justice court considers appropriate. The sentence review involves a hearing and is mandated to consider the “needs of the young person” as well as “the interests of society.” The judge has three options in making a final decision, all of which involve a lesser or equal sentence: (1) transfer the young offender to a less secure custody level, or from custody to conditional supervision or probation; (2) release the youth from a non-custodial disposition or vary the disposition in some way (e.g., the court might omit a curfew or change a condition in a probation or supervision order); or (3) confirm the existing disposition and make no change. Discuss the implications of transferring youth to adult court (or sentencing them as adult offenders). Transfer to Adult Court—YOA For those committed to youth justice reform, one of the most contentious aspects of the YOA was section 16, which allowed judges to transfer youth who were over the age of 14 at the time of the offence to adult court for trial if they had been charged with a serious indictable offence. Transfer was not automatic initially, and applications for transfer were made by the Crown or the young person. When the YOA was first implemented, the decision to transfer required the court to strike a balance between “the interest of society” and “the needs of the young person.” One of the most important factors used by the courts in making these decisions was the availability of appropriate treatment and correctional resources in the youth system, compared with the adult system. If the court decided that the protection of society and the rehabilitation of the young person could not be reconciled, the YOA allowed for the youth to be transferred to the adult system for trial. A major concern at transfer hearings therefore was whether the young person was likely to be rehabilitated within the duration of the sentence allowed in the youth court. Initially, the maximum sentence in youth court for first-degree murder was three years. In adult court, the only choice for young offenders was a life sentence with a minimum of 25 years before eligibility for parole. Hence, while the adult system might be seen to better allow sufficient time for rehabilitation, in reality, judges and juries were reluctant to sentence youth in the same manner they would adults because of the discrepancy between the two systems in sentence length. Amendments in 1992 considerably reduced the discrepancy by allowing the youth court to impose a murder sentence of five years less a day and for those transferred to and convicted in adult court; a life sentence meant eligibility for parole after five to ten years. A second set of amendments, in 1995, further lengthened youth court sentences and shortened youth sentences in adult court, thereby bringing the two even closer together. Changes included increasing youth court sentences for first- and second-degree murder to ten years and seven years, respectively; for youth transferred to adult court for first- and second-degree murder they included increasing eligibility for parole to ten and seven years, respectively. And young offenders charged with murder who were to be tried in youth court were given the choice of trial by judge and jury or trial by judge alone. Most importantly, these revisions mandated that 16and 17-year-old youth charged with murder, attempted murder, manslaughter, aggravated sexual assault, or aggravated assault were to be automatically transferred to and tried in adult court unless an application was granted for the young person’s case to be heard in youth court. These changes set the stage for the current sentencing provisions under the YCJA, but a number of issues remained that are still problematic with the YCJA. Adult Sentences and the YCJA In drafting the YCJA, legislators responded to these concerns about transfer by sidestepping the transfer hearing altogether—all youth charges were to be heard in youth court and some youth would automatically be liable for an adult sentence. Hence, under the YCJA, the initial issue for the courts was one of liability for an adult sentence, not transfer. There were provisions in the YCJA giving youth courts the power to impose adult sentences rather than have to face the arduous Sections 61 to 80 of the YCJA provide the provisions imposing an adult sentence on a young offender. Bill C-10 revoked all the sections pertaining to presumptive offences and rewrote many of the remaining sections. Now, adult sentencing for youth is addressed to the task of deciding to transfer a youth to adult court. This new power was partially accomplished through the creation of the presumptive offence in combination with new sentencing provisions for “serious offences” and “serious violent offences.” The presumptive offence was defined in section 2.1 as an offence of murder, attempted murder, manslaughter, or aggravated sexual assault, or any other serious violent offence that an adult would be subject to more than two years’ imprisonment committed by a youth aged 14 or older. Quite simply, whether a youth was liable to an adult sentence depended on the nature of the offence, the youth’s age, and the sentence an adult would receive for the same offence. Initially, there were three situations in which youth were liable to an adult sentence under the YCJA. First, the YCJA required an adult sentence for youth 16 and over who were found guilty of murder, attempted murder, manslaughter, or aggravated sexual assault. The presumptive offence rule applied to youth aged 14 and 15 charged with these offences, unless a province changed the minimum age to 15 for its jurisdiction. Second, section 64(1) further strengthened the court’s ability to impose adult sentences by extending these powers to also include serious violent offences. In these instances, the onus was on the attorney general to request an adult sentence and for the accused youth to challenge such a request, or, in a reverse-onus situation, for a young offender to apply for the court to order that she or he is not liable to an adult sentence and for the Attorney General to challenge. Furthermore, section 42(9) allowed the youth court to determine that an offence is a serious violent one, and while the act defined a serious violent offence as “an offence in the commission of which a young person causes or attempts to cause serious bodily harm, it did not define “serious offences.” Third, there was a “three-strike rule,” so youth who had committed (or were alleged to have committed) a serious violent offence who already had two prior convictions for serious violent offences were also liable to an adult sentence. Understand the role of legal professionals in youth justice over time. COURT PROCEEDINGS Youth court trials begin with a plea. If a young person pleads guilty, the court proceeds directly to sentencing; if she or he pleads not guilty, the case goes to trial. A youth court trial is the same as an adult court trial, with two exceptions. Initially, under the YOA, there was no preliminary hearing and no jury trial in youth court, but the 1995 revisions (Bill C-37) allowed young offenders to opt for a jury trial in murder cases only. The YCJA changed these rules considerably, allowing a youth to elect a trial when an application has been made for an order for an adult sentence, when a young offender is subject to an adult sentence, or when he or she is facing a murder charge. This is also the case when the charge is one that would entitle an adult to a jury trial. Preliminary inquiries must now be conducted in the same manner as they are for adults, except where this might be inconsistent with the YCJA. In addition, section 67(6) gives the attorney general the power to require a young person be tried by a judge and jury, even in cases where a young person elects to be tried without a jury. Processing a case through youth court is a complex affair, and the process is longer and more complex under the YCJA than it was under the YOA. Case processing involves not only the accused and a judge, but also police, Crown prosecutors, judges other than the trial judge, a justice of the peace, and defence and duty counsel, as well as probation officers, youth workers, and a variety of other non-legal professionals. Legal Representation Only with the introduction of the YOA did youth have the right to legal representation in court. Four types of representation are available to a young offender: a privately retained lawyer, a Legal Aid lawyer, a duty counsel (i.e., a lawyer on duty each day in the court), or a court-appointed/funded lawyer. Court-appointed lawyers are not available in adult court. Young offenders who are unable to retain the services of a private lawyer or a Legal Aid lawyer have the right to request that the court provide them with a lawyer—a policy that has been criticized as something that gives “inexperienced” lawyers an opportunity to learn on the job. Under the YCJA, section 25, young people are still entitled to a private, Legal Aid, or court-appointed lawyer. If the court has a sense that the interests of a young person and the interests of a parent are in conflict, the judge is required to ensure that a young person is represented by counsel, independent of his or her parents. Subsection 25(10) allows provinces to establish a program that would recover the cost of a young person’s counsel, either from the young person or from the parents of the young person. Of concern here is that parents may coerce their children to plead guilty to avoid having to pay legal fees. In addition, lawyers have expressed concern regarding tensions between youth receiving legal counsel and those paying their legal bills. Parents and other legal guardians of youth appearing in court, such as foster parents and institutions, are not always in agreement about what they consider to be the best interests of the youth relative to the young person’s instructions to the lawyer. If the court believes that these interests are in conflict, it has the power to ensure independent counsel for the youth. Whether a young offender has a lawyer does seem to make a difference. A survey of major cities across the country just prior to implementation of the YOA indicated that the presence of a lawyer and the type of representation did have an influence on the likelihood of conviction and/or type of conviction. Duty counsel lawyers were found to be considerably less “successful” than private lawyers. In fact, duty counsel cases were comparable in outcome with cases with no legal representation. Private lawyers were found to be better than duty counsel at negotiating to have charges dropped and in defending not-guilty pleas. Studied individual YOA youth courts in 1986, reported that type of representation made a difference and that the effect of representation varies by race, class, and gender of the accused. It also found that Aboriginal youth do not benefit as much from private and Legal Aid lawyers as do non-Aboriginal youth. The Role of Lawyers A young person’s right to legal representation introduced with the YOA has continued with the YCJA. The YCJA and the Canadian Charter of Rights and Freedoms maintain that youth should be provided with ample opportunities for legal advocacy and advice before any court sanctioning and that access to lawyers should be available at pretrial stages and at all stages of the court process. Most young offenders do not have a lawyer when they first appear in court, and this is where duty counsel can step in. In Ontario, duty counsel lawyers are either private lawyers paid by the Ontario Legal Aid Plan or employees of the plan. They work in the court waiting rooms to provide advice to youth and their parents about what to expect when they go into court, and they speak to the court on the youth’s behalf. They will also talk to youth about release and supervision, and they will contact people who might agree to supervise the youth or, in the case of extrajudicial sanctions, discuss options with the youth and negotiate sanctioning terms with the Crown and probation services. Duty counsel lawyers also make submissions and present arguments to the court judge about release conditions, extrajudicial sanctioning agreements, and sentencing if the youth has decided to plead guilty at his or her first court appearance. Beyond the first appearance, private, Legal Aid, or court-appointed counsel takes over these functions. There is some debate over what role lawyers should play in youth court. Should they act in the best interest of the child, or should they merely offer legal representation? In other words, should a lawyer assume a legal advocate role or a guardian role? The Law Society of Upper Canada advises lawyers to serve as advocates: There is no place … for counsel representing the child to argue what is in his opinion in the best interest of the child. Counsel should not be deciding whether training school would be “good” for the child…. It is advice with respect to the legal rights of the child which is being provided, and that advice is being provided to the child, not to the parents, not to the court, and not to society, but to the child. Lawyers who assume a legal advocate role will advise young clients of their right to remain silent, suggest that they not cooperate with police, provide a legal defence, and try to prevent a conviction. In the case of conviction, they try to get the most lenient disposition possible. Lawyers who assume a guardian role are primarily concerned about what they believe to be the “best interests” of the young offender. As one Manitoba lawyer put it, “My attitude to the practice of law is not adversarial. I am aware of the legal issues and the fact that I am a lawyer, but I am concerned with rehabilitation. I do take the role of a stern parent.” In the event of a conviction, this kind of lawyer will be primarily concerned about what he or she thinks the young offender requires for rehabilitation. Most defence counsel “… likely combine elements of both of these approaches to best address their client’s needs and requirements.” A study of young persons’ perceptions of lawyers from their court experiences found that youth were satisfied with their lawyers when they demonstrated legal competence and professional skills and were dissatisfied when they did not or showed a lack of respect (e.g., he doesn’t do what I ask; he thought he was better than me). Legal Rights A fundamental principle underlying a separate justice system for youth is that they are of a different level of maturity than adults and, as such, have special needs and require special protections. To this end, the YOA and now the YCJA specify these rights and the procedures to ensure them. Beyond the right to counsel and the right to a court-appointed lawyer, the YCJA provides youth the right to be informed, through a variety of means, of these legal rights and of provisions specific to youth regarding the admissibility of statements they make to the police. These latter provisions, in addition to the ones provided to adults (such as the right to not make a statement), include the right to consult a parent or other person as well as a lawyer and a requirement that statements to police be made in the presence of counsel and any other person requested by the youth. The YCJA also requires that rights regarding police statements be “clearly explained … in language appropriate to his or her age and understanding.” These latter requirements, also included in the YOA, sparked controversy because police “technical” mistakes could lead to acquittals and were eventually accepted as “overly prescriptive.” The YCJA provides more leeway for the courts in deciding if a youth’s rights regarding statements were upheld. More specifically, the court can decide to uphold a young person’s statement even when it has determined that required procedures were not followed when the youth waived his or her right to not make a statement. The court must satisfy three conditions to uphold this type of statement: The court must be satisfied that procedures were not followed because of a “technical violation,” that the young person was informed of his or her rights and waived them voluntarily, and that admitting the statement “… would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection” to ensure their rights. It is interesting to note that the YCJA does not define what constitutes a “technical violation.” Describe how Bill C-10 amendments to the YCJA have changed detention and sentencing principles. Adult sentencing: Essentially, Bill C-10 simplifies the process of applying adult sentences and addresses some of the concerns raised by the courts—gone is the reverse onus and the presumptive offence. There are now three necessary criteria for liability to an adult sentence. A youth must be over age 14 and have been found guilty of a serious violent offence and an offence for which an adult would receive a sentence of incarceration for longer than two years. The Attorney General has less discretion in deciding to seek an adult sentence if the offence is a serious violent one and must notify the court, the youth, and parent(s) of his or her intention to seek an adult sentence. After a finding of guilt and prior to a sentencing hearing the court must conduct a hearing on the Crown’s application for an adult sentence. Provinces can still set the age of liability to 15. Where the YOA had a transfer hearing, the YCJA now requires an adult sentencing hearing, and its section 72(1) outlines the “test” for an adult sentence. The YOA was primarily concerned with whether the youth system would allow sufficient time for the youth’s rehabilitation and treatment; now, the YCJA is concerned about whether the youth system allows sufficient time for the youth to be held accountable for his or her offence. Two concerns remain. While Bill C-10 has addressed rights issues associated with the presumptive offence and reverse onus, the concerns raised by Justice Abella that the presumption of “diminished moral culpability” as a cornerstone of “fairness” in a youth justice system continues to be violated by YCJA provisions for adult sentences for youth. Similarly, the UN Committee on the Rights of the Child is still admonishing Canada for applying adult sentences to youth under 18 years of age. Describe the historical development and use of detention for youth, from the use of prisons to reformatories/industrial training schools to correctional centres. HISTORICAL FOUNDATIONS The foundation for the practice of institutionalizing Canadian youth separately from adults was laid in 1857 with the passage of the Act for Establishing Prisons for Young Offenders. The first institution was opened at Îsle aux Noix on the Richelieu River in October 1858, and the second at Penetanguishene on Georgian Bay in August 1859. Both institutions had formerly been used as army barracks. The intention was to provide a better environment for youth than was to be found in adult penitentiaries. While both boys and girls were sent to Îsle aux Noix, only boys were detained at Penetanguishene. Notwithstanding all of the good intentions, both institutions reportedly “fell short of expectations” and became “ primarily institutions of work and punishment.” From Reformatories to Industrial Schools In 1867, J.M. Langmuir was appointed as Ontario’s first Inspector of Prisons, Asylums, and Public Charities. He began with a campaign to change correctional philosophy and policy regarding youth. His efforts were instrumental in changing Penetanguishene from a “reformatory prison” to a “reformatory for boys,” with a mandate to foster the “education, industrial training and moral reclamation of juvenile delinquents.” Meanwhile, efforts were under way in other parts of the country to provide institutions that would serve as places of reform for all children in need—the poor and the neglected as well as the delinquent. Children in need would be prevented from becoming criminals, it was argued, if they received care and education and were taught a trade through industrial training. Halifax was one of the first cities to develop an institution that provided those things. The Halifax Protestant Industrial School (established 1864). Training Schools: Officially designated as “industrial training schools” at the turn of the 20th century, these institutions came to be known as simply training schools. Not surprisingly, as more industrial schools were built, their use increased. A Canadian criminologist writing in the late 1970s reported that “there has probably been no increase in the use of training schools in the last few years…. [T]here is a general indication that the juvenile justice system in Canada has not been opting for an increased use of institutional care.” Youth Centre: Correctional systems for young people underwent structural and procedural changes with the introduction of the YOA. Two levels of custody were established, secure and open, and the court was required to set the level of custody at sentencing. When sentenced for a murder conviction in youth court, a set period of community supervision was also required after a youth was released from custody. While the court established the level of custody, provinces were given the power to designate which of their facilities would classify as open (limited restrictions on movement) or secure (maximum restrictions on movement). Hence, there was considerable variation in facilities across the country. Explain the philosophy of the YCJA in the application of detention. Courts were also operated separately. Youth under 15 were processed under the family court, as they had been under the Juvenile Delinquents Act. Youth aged 16 to 17 were processed in adult court under YOA restrictions; the court was referred to as “youth court” when young offender cases were heard. Both provinces have since moved to have all young offenders processed through the family court. Since August 1994, all youth corrections processes in Nova Scotia have been under the jurisdiction of the Department of Justice, but youth institutions continued to be separated by age and/or gender until the advent of the YCJA. All secure-custody sentences for males aged 16 to 17 were served in the Nova Scotia Youth Centre, while 12- to 15-year-olds served their sentences at the Shelburne Youth Centre. All female young offenders sentenced to secure custody were held at Shelburne regardless of age. Since implementation of the YCJA, all youth serving secure custody sentences, regardless of age or gender, do so at the Nova Scotia Youth Centre. Describe the youth custodial population. Overall, 0.1 percent of the Canadian youth population is currently serving a custodial sentence—an average daily count of 669. Identify correctional programs and describe their effectiveness in light of legislative principles. Types of Programs The YCJA sets the parameters for juvenile corrections. However, because the provinces are responsible for implementation, there is considerable variation in philosophical orientations to correctional programming. Toward the end of the YOA era, some provinces experimented with disciplinary crime control programs (e.g., “boot camps” in Alberta and Ontario), while others, such as Newfoundland and Labrador, were developing interventionist service delivery programs designed to minimize the use of custody. Although provincial correctional philosophies do change (particularly when there is a change in the governing political party), there is a certain amount of consistency in the types of programs offered to young offenders, both in custodial facilities and in the community. There are three types of correctional programs: general, offence-specific, and offender-specific. General programs usually apply to all offenders and include such things as life skills, education, recreation, and counselling programs. Offence-specific programs target specific offences; examples are the StopLift program, for shoplifters, and sex offender programs. Offender-specific programs target the offender’s problems and behaviours and are exemplified by substance abuse, leisure time, and anger management programs. Some facilities are specifically designed to provide programming for special needs, such as substance abuse. Most institutions offer programming in the areas of education, counselling, life skills, and recreation. In most cases, programs are developed on an individual basis to meet young offenders’ needs through the initial assessment process. Behaviour modification programs, also known as a token economy system, are most often used as a method of reinforcing program objectives. With behaviour modification, offenders are rewarded or punished by earning or losing points for various privileges. Privileges include such things as contact or home visits with parents and family, movies, or longer hours in TV or games rooms. Punishments involve a removal of some or all privileges, cell confinement, or extra household duties. Substance Abuse: Substance abuse is considered a major risk factor in delinquent and aggressive behaviour and recidivism, so an important first step in programming is for the young offenders to work successfully through a substance abuse program. These programs are designed to provide the resources, encouragement, and support that a young person will need to overcome physical, emotional, and/or psychological addiction to alcohol and/or drugs. Substance abuse programs are seen as a starting point for youth to learn how to overcome their addictions. An important part of substance abuse programming is to involve community support systems and groups (such as Narcotics Anonymous and Alcoholics Anonymous), so that follow-up assistance can be provided when young offenders are released into the community. Based on a literature review of substance abuse programs. Programs should target multiple needs related to schooling, employment, and peer and family relationships. Ideally, such programs should be delivered in a community setting. However, because this is not possible for incarcerated youth, institutional programs and residential programs need to incorporate aftercare and advocacy components for youth when they return to their communities. Regardless of setting, effective substance abuse programs will Be delivered in correctional settings with low staff turnover and a rehabilitative rather than retributive philosophy; Identify and target a youth’s strengths; Provide extended rather than short-term programs; Incorporate relapse prevention into the program design and content; and Systematically address HIV/AIDS concerns Education: Educational programming is an important part of correctional programming because many youth have experienced failure in the regular school system and are poorly motivated with respect to academic studies. Educational programs aim to address self-esteem, motivation, and overall reading and writing skills, as well as academic subjects and vocational training. Some students work on academic credits through correspondence courses. Others are granted an educational temporary absence for the purpose of attending local schools. Some institutions offer computer classes in which young offenders are able to learn basic word processing and some software applications. Youth facilities sometimes arrange with local community colleges to provide instruction in specialized vocational studies. Sometimes the youth facilities engage in government contracts with local school boards to provide educational programming. Cognitive Skills and Life Skills: Many young offenders are seen to have failed to acquire the cognitive skills that are essential for effective interpersonal relations. Problems with interpersonal relations are seen to stem from a lack of parental guidance, a poor home environment, and negative peer group influences. Life skills and social skills programs attempt to provide young offenders with an opportunity to develop appropriate cognitive skills and self-esteem, and to replace anger, hostility, and aggression with pro-social attitudes and behaviour. This type of programming is designed to help youth to think about why they got into trouble with the law, how they might have avoided such an outcome in the past, and how they will avoid problems in the future. Cognitive skills programming focuses on rational self-analysis, self-control, means/end reasoning, critical thinking, and interpersonal cognitive problem solving. Working through the development of cognitive skills provides an avenue for addressing more specific issues, such as anger management, employment strategies, stress management, and decision-making. Life skills programs focus on communication skills, family and peer relationships, sex education, and personal hygiene. Rational self-analysis: The objective is to teach the youth to pay attention to and critically assess his or her own thinking. Self-control: Involves teaching youth to stop, think, and analyze the consequences of their behaviour before they act. Means/end reasoning: The aim is to teach youth to think about appropriate pro-social means of satisfying their needs before they act. Critical thinking: Requires teaching youth how to think logically, objectively, and rationally as opposed to externalizing blame and overgeneralizing or distorting facts and information. Interpersonal cognitive problem solving: The objective is to teach youth how to analyze interpersonal problems, how to recognize how their own behaviour affects other people and why others respond to them as they do, and how to understand and consider other people’s values, behaviour, and feelings. Recreation: Recreational facilities and programs, particularly those that feature swimming pools and gymnasiums built into youth facilities, are viewed by some public-interest groups as bringing a “holiday camp” atmosphere to youth corrections. Those responsible for administrating youth facilities and programs have a different view. They see recreational programs as an integral part of the rehabilitation process and emphasize the therapeutic benefits of recreation. Many facilities offer arts and crafts programs in addition to their sporting and physical fitness programs. All of these programs are designed to teach young offenders to make productive use of their leisure time and to assist youth in improving their interpersonal and communications skills and ability to work cooperatively. Other program objectives include providing youth with a sense of accomplishment and well-being, and giving them an opportunity to explore their individual talents and interests. Some facilities offer wilderness survival programs. These programs are designed to enhance self-awareness, foster a sense of self-reliance and trust, and help youth develop goal-setting and problem-solving abilities. Some programs, such as aquatics, are run as a vocational training program. Temporary absences are often granted to allow youth to attend and/or participate in community-based recreational activities. Boot Camps: Two provincial governments (Ontario and Alberta) implemented boot camps for young offenders. Boot camp refers to facilities or programs that emphasize military-style discipline, physical conditioning, teamwork, and punishment in attempting to rehabilitate young offenders. Educational and life skills programs are sometimes also involved. People who believe that youth today lack discipline and respect for authority tend to be attracted to the idea of boot camps. For governments, boot camps offer a cheap alternative to incarceration. It would appear that these programs are being adopted for political, financial, and ideological reasons, not because of any demonstrated success. (It didn't work out). Programming Issues: No discussion of correctional programming would be complete without a consideration of the issues associated with the very idea of rehabilitative treatment or rehabilitation. These concepts tend to be used interchangeably, as both refer to the objectives of correctional programs. The term “treatment” is often used to refer to psychiatric and psychological programs that involve individual or group counselling or psychotherapy and whose purpose is to change a person’s behaviour or attitudes. The term “rehabilitation” also refers to programs designed to effect change; these programs may involve educational and vocational training, as well as various types of life skills programming. Most treatment programs are geared toward a particular type of offender, as exemplified by sex offender treatment programs. “Rehabilitation” usually refers to a philosophical approach to correctional programming. The variety of programs through which it seeks to correct or change stands in contrast to programs that are based on the principles of retribution or incapacitation. Campbell (2005b) adds the idea of “interventions” to this discussion, a term used in rehabilitation literature from Quebec that is increasingly appearing in recent treatment and programming literature in the field. Campbell speaks of “rehabilitative interventions” in a manner that encompasses all types of programming, both institutional and community, and may even be more appropriate for newer programs that involve combinations of therapy and training directed at youth or at both youth and their families, such as aggression replacement training and multisystemic therapy (MST) (see below). With respect to treatment, rehabilitation, or rehabilitative interventions, the important issue is whether programs are successful. A related but newer question focuses on why we have so little success with so many youth. Answers to this question focus on what has not been addressed in our efforts at rehabilitation and reintegration. Does Treatment/Rehabilitation Work? The debate regarding the efficacy of treatment began with a now-classic study published in the 1970s that had a profound impact on attitudes and thinking about correctional programming. Robert Martinson examined all of the research that had been done to evaluate treatment programs and concluded from the results that “nothing works.” Not surprisingly, correctional workers and treatment providers took issue with this finding. Some treatment advocates scrutinized Martinson’s work and concluded that he was wrong in his conclusion. When Martinson later re-examined his earlier work, his critics reported that he had retracted his “nothing works” conclusion. However, Doob and Brodeur later pointed out that Martinson’s critics had misrepresented both his original and later work. Although Martinson conceded in his re-examination that some programs had a modest success rate, his most significant finding was that some programs had negative consequences for participants. An important lesson to be learned from Martinson’s findings is that, even though our intentions are good and we want to help a person, we cannot assume that the person will actually benefit from rehabilitative interventions. There are many reasons why programs may not have the positive effects that are intended. One reason is quite simply that short sentences afford limited time in which to affect change, particularly in youth identified as having serious risk profiles. More fundamentally problematic is the setting itself: an institutional setting may not be conducive to rehabilitation. It may be unreasonable to expect that removing people, especially young people, from their families and communities and subjecting them to an institutional environment and non-voluntary participation in a variety of programs will somehow equip them for reintegration back into these communities. This is a problem also identified by both the people who work in institutions and the youth who live there. Anger management programs are a case in point. Aftercare Programs Many communities have developed aftercare programs through existing community organizations. These programs are often rehabilitative and skill-based. The Stop and Think program in Halifax is an example of such a program, involving two stages, which could begin on release or in the institution and then continue after release. First-stage programming focused on programs related to sexuality, drugs, family relationships, leisure education, self-analysis, and motivation/goal identification. After this first phase, the focus switched to programming more specific to community living, such as academic upgrading for school preparation or literacy instruction, career planning, and pre-employment training that involved work placements. Once youth completed the actual aftercare program, the aftercare continued because of linkages that had been established with other support systems in the community, such as alcohol and drug counselling groups. Following its first year in operation, Stop and Think reported that two-thirds of the youth who successfully completed the program did not engage in further criminal activities. Other programs have been designed specifically for delivery in the community, most often the family home, rather than in an office or community facility. One such program is multisystemic therapy (MST). MST is an intervention strategy based on a family preservation service delivery model with a demonstrated effectiveness for delinquency prevention. Leschied and Cunningham describe MST as “… more an amalgam of best practices than a brand-new method.” The intervention involves one person (a trained MST therapist) delivering services to family members identified as being in need of intervention, not just to the young offender. MST directly addresses the fact that social interventions cannot last forever, and it is therefore designed to be intense and of short duration. Hence, the interventions take place over a relatively short period of time (one to four months), are delivered in the home, and are available 24 hours a day, seven days a week. The intervention strategy involves a focus on problem behaviours with the young offender and parents, siblings, and friends, including substance abuse, assaultive behaviours, non-compliance with family rules, poor parenting skills, lack of supervision, and antisocial values. The process involves developing strategies to eliminate these behaviours by building on the strengths of the youth and family members