Pubdate: Sat, 01 Apr 2006
Source: Globe and Mail (Canada)
Copyright: 2006, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Author: Richard Blackwell
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
Bookmark: http://www.mapinc.org/find?224 (Marijuana and Driving)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)
Bookmark: http://www.mapinc.org/people/Vic+Toews

ADULT CRIME, ADULT TIME? N.S. CASE FUELS DEBATE

A Teen Driver High on Pot Hits Another Car, Killing Its Driver. 
Shocking As the Case May Be, Experts Say It Should Not Push Canada 
into Instituting Mandatory Sentences for Young People, Richard Blackwell Writes

It was a youth crime that shocked an entire community.

On Oct. 14, 2004, a Toyota Camry driven by teaching assistant Theresa 
McEvoy was broadsided at a Halifax intersection by a Chrysler LeBaron 
driven by a 16-year-old youth, instantly killing a 52-year-old mother of three.

What was so galling to the people of Halifax was not just that the 
young man, Archibald Billard, had stolen the car and was so high on 
marijuana that he did not know how fast he was going. It was also the 
fact that two days before the crash, he had been released from jail 
even though he was facing charges stemming from a high-speed police 
chase two weeks earlier and other alleged offences.

Mr. Billard eventually was given an adult sentence of 5 1/2 years in 
custody after pleading guilty to criminal negligence causing death. 
But his case is the subject of an ongoing public inquiry that is 
focusing a bright light on the Youth Criminal Justice Act, the 
federal law that makes it difficult to keep young offenders in jail 
unless they commit serious, violent crimes.

The law came into effect on April 1, 2003. It replaced the Young 
Offenders Act, considered by many to be deeply flawed because it put 
so many young people in prison, where they often evolved into 
hardened criminals.

The new act adopted the philosophy of the United Nations Convention 
on the Rights of the Child, which supports a separate justice system 
for young people, with an emphasis on rehabilitation.

Criminologists and prosecutors say the new act is doing what it was 
designed to do: jailing young people only for serious violent 
offences, or in a limited number of other exceptional circumstances. 
But some also say it is too restrictive, making it tough to keep 
people such as Mr. Billard off the street.

Data released last week suggest the new law really is keeping young 
people out of jail. Statistics Canada said that in 2003-2004, its 
first year, about 17,100 people aged 12 to 17 were put into custody, 
down from 22,700 the previous year.

But Justice Minister Vic Toews, who wants to revamp the act, declared 
that the numbers do not prove anything. "Simply because few people 
are being incarcerated does not mean that the system is working," he 
said in Ottawa.

The Conservative federal government has vowed to make sure young 
people are "accountable and responsible" for their actions, and 
promised during the election campaign this winter to bring in 
mandatory adult sentencing for violent or repeat offences.

But the timetable for amendments is up in the air, and will depend on 
other cabinet priorities, said Mr. Toews's spokesman, Mike Storeshaw.

Mr. Toews also will be constrained by provincial court decisions -- 
the latest a week ago from the Ontario Court of Appeal -- that say it 
is unconstitutional to give an adult sentence automatically to a young person.

Those who deal directly with young offenders are debating about what 
can be changed to make the youth law more effective without thwarting 
its objectives.

One issue that has arisen frequently at the inquiry in Halifax is 
whether the social-service infrastructure is sufficient to deal with 
the wayward youth who are not in jail because of the act.

Crown attorney William Fergusson of Windsor, N.S., told the inquiry 
that by creating the YCJA, the federal government essentially shifted 
the burden of treating and assessing young offenders to the 
provinces, which must finance the programs.

In jail, many offenders receive treatment fairly quickly because it 
is a "controlled environment," Mr. Fergusson said. "If you don't keep 
them inside, then they're out on the street, and the street problems 
normally are the provincial problems," he told inquiry commissioner 
Merlin Nunn, a retired justice of the Nova Scotia Supreme Court.

Another key concern, according to Halifax senior Crown attorney Gary 
Holt, is the narrow range of behaviours that allow the courts to keep 
a young person behind bars.

Late in 2005, the Supreme Court of Canada made it clear that only 
truly violent offences can result in incarceration for young people.

In a pair of decisions, the top court threw out six-month jail 
sentences that had been imposed on two young men in Alberta. One had 
pleaded guilty to arson and possession of a weapon, and the other had 
pleaded guilty to dangerous driving.

The lower courts said they were essentially violent offences, but the 
Supreme Court disagreed. "In the context of the YJCA," Mr. Justice 
Michel Bastarache wrote for eight of the nine judges, "the term 
'violent offence' should be narrowly construed."

Still, Mr. Holt said, from the perspective of a prosecutor, some 
"fine tuning" to the act is needed to allow incarceration for 
non-violent behaviour that is potentially dangerous.

For instance, it makes eminent sense to jail a young person who 
insists on driving dangerously without a licence, he said.

Judges need more flexibility and discretion than the act allows, Mr. 
Holt added. But equally important, he said, any changes should be 
crafted to ensure that the overall objective of the law -- to keep as 
many young people out of jail as possible -- is maintained.

Despite the problems that have been underlined by the Halifax case, 
the act has been a success over all, said Nicholas Bala, a law 
professor at Queen's University in Kingston. "We were sending too 
many people into custody and it was often not just ineffective, but 
actually counterproductive."

Under the YCJA, fewer young people are in the courts and in jail, but 
the youth-crime rate has not increased, he noted. That suggests 
worries about dangerous young people at large are generally unfounded.

Certainly, sending more young people to adult jail is not the way to 
make the streets safe, Prof. Bala said.

"If you want to look at a place that sends a lot of young people to 
adult jails, look in the United States. They have a much more serious 
youth-crime problem [and] they send many, many more young people into 
adult jails. It's not the way to have safer communities."

Susan Reid, director of the Centre for Research on Youth at Risk at 
St. Thomas University in Fredericton, said the passing of the YCJA 
was an important recognition that few violent crimes are committed by 
young people, and that for more minor offences, jail time makes no sense.

The problem, she said, is that the cost savings from keeping young 
people out of jail -- as much as $35,000 a person a year -- have not 
been reinvested in community programs for youth.

"Where's that money gone? Surely to goodness you'd see some of that 
money filtered into some planning for alternatives to custody, and 
I'm just not seeing a lot of that happening," she said.

She called it disheartening to hear Ottawa talk of mandatory adult 
sentencing of some young people just because of "a few isolated cases 
where something horrible happens."

It would be a mistake, and contrary to the UN convention, she said, 
to revert to the view that "adult crime should draw adult time."

Over all, Prof. Bala said, it is not the YCJA, or any rejigged 
youth-justice law, that will make Canadian communities safe. 
Community policing and social programs to deal with youth problems 
stemming from learning disabilities and fetal alcohol syndrome are 
much more important, he said.

And nothing will ever eliminate youth crime, he added.

"A certain level of adolescent offending is a part of social life. 
Adolescence is a time of making mistakes [and] errors in judgment. 
"We want to do everything we can to limit that, but people shouldn't 
imagine [that] if we only had a better piece of legislation . . . we 
wouldn't have youth crime."

When it comes to creating a safe society, "the youth justice system 
has a relatively small role to play. It's education, health, mental 
health and social services. Those are [what] get you a safer society, 
not the youth-justice system." 
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