Before 1908, youth who were in conflict against the law were often treated similarly among other criminals, receiving severe penalties while frequently being detained with adults when awaiting trials or sentencing. 1908 represented an extensive transformation concerning juvenile delinquent treatment with the implementation of the Juvenile Delinquents Act, which established a separate justice system for youth offenders. With the newly-created Juvenile Delinquents Act, children who committed offences against the law weren’t charged with breaking specific statues, but charged instead with delinquency. Judges could focus on individual needs and rehabilitation and had improved sentencing options, which increased discretion in sentencing juvenile delinquents. The Juvenile Delinquents Act’s aim towards rehabilitation had a largely-positive role among those who went through juvenile justice systems. However, over time several flaws in the act had became apparent, in which issues eventually led to calls for changes to youth justice legislation.
Parliament had authorized the Young Offenders Act, which was to be implemented in 1984, replacing the Juvenile Delinquents Act. The purpose of this act was to make a shift towards increasing youth’s responsibility for their actions in terms of punishments. This new legalistic approach of the Young Offenders Act represented another considerable transformation in dealing with juvenile delinquents. Instead of being charged with delinquency, as according to the Juvenile Delinquents Act, children were now charged with violating specific statutes of sections of the criminal code, where the sentences where aimed to reflect the seriousness of the crime. Over the next several years, the Young Offenders Act became the source of strong debate, during which experts had argued on the sides that the act was both, too lenient or too harsh and counter-productive.
Faced with an increasing amount of criticism, the Canadian federal government announced a new strategy for youth justice after the Standing Committee on Justice and Legal Affairs submitted a report recommending an overhauling of the Young Offenders Act. The new act, the Youth Criminal Justice Act came into effect in April 2003, replacing the Young Offenders Act. This act created a balance, which incorporating the legalistic framework of the Young Offenders Act, and the social approach of the Juvenile Delinquents Act. The new Youth Criminal Justice Act increased the number and placed greater emphasis on the use of extrajudicial measures, such as police warnings, restorative justice, and deferred custody when dealing with the issue of youth sentencing. Overall, the Youth Criminal Justice Act has been largely successful in its purpose to significantly reduce youth incarceration rates through adding greater emphasis and applications of such extrajudicial measures, which move away from incarceration being the primary tool.
Using Weber’s theory as an analytically and explanatory framework for understanding the replacement of the Young Offenders Act with the Youth Criminal Justice Act, this shift falls under his term of logical formalism, which concerns itself with “two fundamental activities in the field of law: creating law, and finding law once it is created (adjudication)” (Pavlich, p. 109). Applying Weber’s definition, the Young Offenders Act could be interpreted as formal system of law as “legal decisions are guided by the application of formal rules and criteria that are internal to legal systems”. For example, prior to the Young Offenders Act (under the Juvenile Delinquents Act), different provinces had varied in determining the maximum age where young offender could be prosecuted as a youth. As a result, the Young Offenders Act enacted a uniform maximum age of 17 across Canada. Due to this legislation, decisions were now to be guided by applying these criteria to a given case.
Increasing incarceration and recidivism rates among young offenders under the Young Offenders Act, however, led to a decrease in the degree of formality in the shift towards the Youth Criminal Justice Act. External criteria, such as ethical values and emotions in the moral dilemma of prosecuting young offenders resulted in the demand for revision of the creation and adjudication of laws. As the Young Offenders Act was replaced by the Youth Criminal Justice Act, this formal system of law shifted towards a substantive system.
External criterion was increasingly used under the Youth Criminal Justice Act, when prosecuting youth offenders. As the rates of incarceration in young offenders have been significantly reduced, there has been an increase in the number of extrajudicial sentences, for example: referral to restorative justice agencies, deferred custody orders, supervision in the community, and more. The rise of these extrajudicial measures also arose outside of the application of formal rules and due to external criterion. Large populations of communities across Canada were unsatisfied with the procedure of punishing youth deviance under the Youth Offenders Act, and pursued external sources of justice, leading to the implementation of the Youth Criminal Justice Act. Despite the emphasis on these extrajudicial measures, it is also important to mention that the act doesn’t always depart from harsher punishments or penalties, which can include imprisonment, for youth in situations where serious offences have been committed.
Pavlich, G. (2011). Law & Society Redefined. New York: Oxford University Press.