The problem of youth deviance is a concern to many people. Canadian youth justice legislation has changed dramatically in the past century; from a child-welfare approach under the Juvenile Delinquents Act (1908), to a more legalistic ‘due process’ paradigm under the Young Offenders Act (1984), to the current Youth Criminal Justice Act (YCJA, 2003) which promotes the rehabilitation and responsibility of young offenders. The following study examines cases to determine the manner in which a specific section of the YCJA, s. 39 (prohibitions on the use of custodial sentences) is being used in judges’ decisions, and if so, if it is being used consistently and appropriately. Quantitative and qualitative analysis were used to examine related Canadian case law. The databases LexisNexis Quicklaw and WestlawECarswell, using the search terms “YOUTH CRIMINAL JUSTICE ACT,” “YCJA,” and “s. 39” were used to narrow down cases in which this section of the YCJA was mentioned. This search process yielded a total of 210 cases, seventy-seven of which were appeals. The appeals were analyzed qualitatively and the other cases were analyzed quantitatively. It was found that one problem in implementing s. 39 and using it consistently in sentencing appears to be judges’ uncertainty about the appropriate use of the legislation resulting from the lack of clarity within the legislation itself. Parts of the legislation were left open for interpretation, such as the definition of a violent offence, or what was to be considered an exceptional case. It is argued in this study that for any legislation to work, it must be clearly written to reduce as much subjectivity and level interpretation as possible. While judges are often criticized for their decision-making in sentencing, they are limited by the legislation that is in place. Therefore, if there are problems in the practice of the court system, the solution lies in revamping the written law first. / October 2008

The problem of youth deviance is a concern to many people. Canadian youth justice legislation has changed dramatically in the past century; from a child-welfare approach under the Juvenile Delinquents Act (1908), to a more legalistic ‘due process’ paradigm under the Young Offenders Act (1984), to the current Youth Criminal Justice Act (YCJA, 2003) which promotes the rehabilitation and responsibility of young offenders. The following study examines cases to determine the manner in which a specific section of the YCJA, s. 39 (prohibitions on the use of custodial sentences) is being used in judges’ decisions, and if so, if it is being used consistently and appropriately. Quantitative and qualitative analysis were used to examine related Canadian case law. The databases LexisNexis Quicklaw and WestlawECarswell, using the search terms “YOUTH CRIMINAL JUSTICE ACT,” “YCJA,” and “s. 39” were used to narrow down cases in which this section of the YCJA was mentioned. This search process yielded a total of 210 cases, seventy-seven of which were appeals. The appeals were analyzed qualitatively and the other cases were analyzed quantitatively. It was found that one problem in implementing s. 39 and using it consistently in sentencing appears to be judges’ uncertainty about the appropriate use of the legislation resulting from the lack of clarity within the legislation itself. Parts of the legislation were left open for interpretation, such as the definition of a violent offence, or what was to be considered an exceptional case. It is argued in this study that for any legislation to work, it must be clearly written to reduce as much subjectivity and level interpretation as possible. While judges are often criticized for their decision-making in sentencing, they are limited by the legislation that is in place. Therefore, if there are problems in the practice of the court system, the solution lies in revamping the written law first.

The problem of youth deviance is a concern to many people. Canadian youth justice legislation has changed dramatically in the past century; from a child-welfare approach under the Juvenile Delinquents Act (1908), to a more legalistic ‘due process’ paradigm under the Young Offenders Act (1984), to the current Youth Criminal Justice Act (YCJA, 2003) which promotes the rehabilitation and responsibility of young offenders. The following study examines cases to determine the manner in which a specific section of the YCJA, s. 39 (prohibitions on the use of custodial sentences) is being used in judges’ decisions, and if so, if it is being used consistently and appropriately. Quantitative and qualitative analysis were used to examine related Canadian case law. The databases LexisNexis Quicklaw and WestlawECarswell, using the search terms “YOUTH CRIMINAL JUSTICE ACT,” “YCJA,” and “s. 39” were used to narrow down cases in which this section of the YCJA was mentioned. This search process yielded a total of 210 cases, seventy-seven of which were appeals. The appeals were analyzed qualitatively and the other cases were analyzed quantitatively. It was found that one problem in implementing s. 39 and using it consistently in sentencing appears to be judges’ uncertainty about the appropriate use of the legislation resulting from the lack of clarity within the legislation itself. Parts of the legislation were left open for interpretation, such as the definition of a violent offence, or what was to be considered an exceptional case. It is argued in this study that for any legislation to work, it must be clearly written to reduce as much subjectivity and level interpretation as possible. While judges are often criticized for their decision-making in sentencing, they are limited by the legislation that is in place. Therefore, if there are problems in the practice of the court system, the solution lies in revamping the written law first.

La justice criminelle devrait être adaptée aux mineurs et répondre à leurs besoins spécifiques selon le droit international des droits de l’enfant. Or, ce mémoire démontre que les droits internationaux de l’enfant compris dans les traités et autres instruments de droit international ne sont pas respectés au Canada. Le non-respect des droits de l’enfant en matière de justice juvénile se traduit par une violation des protections internationales fondamentales contre la discrimination raciale. Afin d’étudier les répercussions de la violation des droits du mineur dans la justice criminelle sur les jeunes racialisés, l’auteure adopte un cadre théorique critique de la race. La loi canadienne sur le système de justice pénale (LSJPA) est évaluée à la lumière des instruments internationaux de protection des droits de la personne selon quatre thèmes, soit (1) l’accent de la justice juvénile canadienne mis sur la répression, (2) l’accès entravé aux mesures et sanctions extrajudiciaires, (3) l’emploi abusif du placement sous garde ainsi que (4) l’assujettissement à une peine adulte. Chacun de ces quatre thèmes aborde la question de la discrimination raciale telle que vécue par les Autochtones et jeunes d’appartenance aux minorités visibles. / According to Children’s international rights, the youth criminal justice system should be adapted to minors and address their special needs. However, this thesis examines the extend to which Canada does not fulfill its international obligations regarding international children’s rights in juvenile justice. Violation of these rights induce the infrigement of internationally recognized fundamental protections against racial discrimination. In order to analyse the consequences for racialized youth of such violation of international rights, the author applies a critical race theoretical frame. This thesis compares the Canadian Youth criminal justice Act (YCJA) with international human rights emanating from ratified treaties and other international agreements. The evaluation is divided among four themes : the emphasis of the present act on the repressive justice model, the impeded access to extrajudicial measures and sanctions, the abusive use of detention, and the transfer to adult court. Each of these four themes address questions of racial discrimination as lived by Aboriginal youth and visible minorities.

No description available.