13th REPORT OF THE STANDING COMMITTEE ON JUSTICE AND LEGAL AFFAIRS

CHAPTER 7 - AMENDING THE YOUNG OFFENDERS ACT

This chapter of the Report is different from those preceding it. To assist in understanding how the Committee came to its findings on the issues dealt with in this part, the background and options considered (as well as a list of those making submissions in support of each option) are set out, followed by the Committee's recommendations. The recommendations represent the consensus of the Committee or the views of the majority of its members.

MINIMUM AGE

BACKGROUND: Prior to enactment of the Young Offenders Act, any child under 7 was exempted from criminal liability, while children between 7 and 14 were presumed under the common law doctrine of doli incapax to be incapable of committing a criminal offence. This presumption could be rebutted by the Crown proving that the child was able to appreciate the wrongful nature of the act. A child was presumed to be capable of forming a criminal intent at 14 years of age (through the interaction of the common law and sections 12 and 13 of the Criminal Code as they were at that time). The Young Offenders Act raised the minimum age of criminal responsibility from 7 to 12 and reduced the age of presumed capacity from 14 to 12 years of age.

Option 1: Retain the status quo. Those who support this option argue that 12 is the age at which adolescence begins, few offences are committed by young people under this age, and the criminal justice system is not the most appropriate means for dealing with the problems of preadolescent children. This option is supported by, among others, Commission des services juridiques, Interfaith Committee on Youth Justice, Barreau du Québec, PEI Department of Health and Social Services, Canadian Resource Centre for Victims of Crime, Province of New Brunswick, various John Howard Societies, Canadian Foundation for Children, Youth and the Law, Canadian Association of Elizabeth Fry Societies, New Beginnings (Essex County), Herbert Allard, and Commission des droits de la personne et de la protection des droits de la jeunesse.

Option 2: Make greater use of provincial and territorial child welfare and mental health legislation; if these are not adequate, they should be reformed. Those who support this option argue that many of the problems manifested in criminal acts by under-12's are better and more appropriately dealt with by interventions other than those emanating from the criminal justice system. Not only will these other interventions be more appropriate, they will also be brought to bear more promptly and will hence be more effective. The criminal justice system has by its nature built-in delays and rigidities that are not always conducive to early intervention. In 1991, a federal-provincial-territorial committee of officials responsible for youth justice recommended that the Uniform Law Conference review this issue with the goal of developing uniform legislation to deal in a child welfare/mental health context with offending under-12's. The Conference has apparently not yet taken up this question. The Federal-Provincial-Territorial Task Force on the Youth Justice System in Canada in its November 1996 report recommended that Ministers responsible for youth justice and related issues review their legislation and policies to determine their adequacy for dealing with under-12 offending. This option is supported by, among others, Commission des services juridiques, Interfaith Committee on Youth Justice, Hamilton Conference of the United Church, British Columbia Civil Liberties Association, Elizabeth Fry Society of British Columbia, New Beginnings (Essex County), Montreal Y Impact Program, Canadian School Boards Association, Canadian Teachers Federation, Canadian Association of School Administrators, and Canadian Home and School and Parent-Teacher Federation (joint brief), Canadian Foundation for Children, Youth and the Law, Barreau du Québec, Canadian Police Association, Canadian Association of Chiefs of Police, and Canadian Association of Elizabeth Fry Societies.

Option 3: Lower the minimum age to 10 in certain circumstances based upon the seriousness of the offence, with either a designated list of such offences where the lower age would apply automatically or with the consent of the provincial Attorney General and/or with a determination by a Youth Court judge. Those who support this option argue that the child welfare/mental health systems are incapable of dealing with cases of under-12 serious offending because their approaches are inappropriate and they do not have the secure and forensic resources to do the job. They argue that criminal acts should receive criminal sanctions. Those supporting this option recognize that not all but only the most serious instances of under-12 offending should be criminally sanctioned. They also recognize that special procedures would have to be put into place to protect the rights of under-12's and to see that special custodial arrangements were made for them. This option is supported by, among others, Professor Nicholas Bala, Edmonton Police Service, Child Guidance of Winnipeg, Crime, Responsibility and Youth (CRY), British Columbia School Trustees Association, Victims of Violence, Citizens Against Violence, Union of British Columbia Municipalities, Ministers of Justice of Alberta and Manitoba and Solicitor General of Ontario.

Option 4: Lower the minimum age to 10. Those who support this option make many of the same arguments are made in relation to option 3, without setting out any limits or guidance as to when such criminal liability is to attach to under-12's. This option is supported by, among others, Eric Spears, Stu and Margaret Garrioch, Crime, Responsibility and Youth (CRY), Mary Jane Doe, Kid Brother Campaign, Brad Duguid, and John Prystanski.

Having considered the preceding options, the committee makes the following recommendation.

RECOMMENDATION 9

The Committee recommends that Section 13 of the Criminal Code (which establishes 12 as the minimum age of criminal liability) and the Young Offenders Act be amended so as to provide the Youth Court with jurisdiction to deal with 10 and 11 year old young persons alleged to have committed criminal offences causing death or serious harm. Such an amendment should require the Attorney General, after consultation with the appropriate child protection/child welfare, mental health, education and other authorities, to personally consent to prosecuting such young persons before Youth Court. Any such amendment should further require the Youth Court judge to review the seriousness and circumstances of the alleged offence, the character and background of the young person, and the availability of appropriate child protection/child welfare, mental health, education, or other services or programs before deciding if the young person should be dealt with in the Youth Justice System. Under this amendment, if the Youth Court judge decides to refer the young person to services and programs outside of the Youth Justice System, the criminal charges would be held in abeyance while the young person is being dealt with by these other services and programs. If, under this amendment, these services and programs deal effectively with the young person's offending behaviour, the criminal charges held in abeyance could be dismissed by the Youth Court judge.

The Committee further recommends that the amendment providing the Youth Court with jurisdiction to deal with 10 and 11 year old young persons alleged to have committed criminal offences causing death or serious harm be evaluated by the Department of Justice within three years and that the findings and recommendations of the review be reported back to the House of Commons Standing Committee on Justice and Legal Affairs.

MAXIMUM AGE

BACKGROUND: Under the Juvenile Delinquents Act, the maximum age varied from province to province - it was 18 in Manitoba and Quebec, 17 in Newfoundland and British Columbia, and 16 in the remaining jurisdictions. The age was increased uniformly to 18 across Canada by Parliament when it adopted the Young Offenders Act in 1982; this provision did not come into effect until 1985 in order to allow all jurisdictions to make the required adjustments in their youth justice services and programs. This change in the maximum age had the effect of bringing into the youth justice system those offenders who had previously been dealt with in the ordinary/adult system. At the same time, there was great controversy about and resistance to it from some provinces. Since the early and mid-1980s, the issue of maximum age has become less controversial but it continues to be important because the youth justice system does not have jurisdiction over and cannot deal with offences committed by young people after their eighteenth birthday.

Option 1: Retain the status quo. Those who support this option argue that 18 is the age at which adolescence is largely complete and that until that age, young people who engage in offending behaviour are still dependent, vulnerable and susceptible to successful attempts at rehabilitation. Until that age, not only are they not fully matured and socially and economically dependent, they are also denied many of the legal rights and privileges of adulthood; it makes more sense for the maximum age in this legislation to accord with the age at which most of these rights and privileges become available to young people. Some of those supporting this option argue that the Act's transfer provisions should be used more frequently to address serious offending by 16- and 17-year-olds. This option is supported by, among others, Montreal Y Impact Program, Society for Children and Youth of British Columbia, Association des centres jeunesse du Québec, Province of New Brunswick, Canadian Foundation for Children, Youth and the Law, Barreau du Québec, various John Howard Societies, Canadian Association of Police Boards, Vancouver Youth Court/Youth Justice Committee, Professor Nicholas Bala, Canadian Resource Centre for Victims of Crime, Professor Jean Trépanier, Herbert Allard, Commission de protection des droits de la personne et de la jeunesse, Minister of Justice of Alberta and British Columbia Civil Liberties Association.

Option 2: Lower the maximum age to 17 or 16. Those who support this option argue that 16- and 17-year-olds are physically and emotionally mature enough to appreciate the nature and effect of their acts, and to be accountable for them in the ordinary/adult criminal justice system; they would commit fewer offences if they knew they would be dealt with in the ordinary/adult criminal justice system. It is argued that the behaviour patterns of 16- and 17-year-olds are more fixed and intractable and they would be more difficult to alter in a youth justice system meant to deal with younger, more malleable offenders. The public would be better protected because 16- and 17-year-olds in the ordinary/adult system would be incarcerated for longer periods of time and their identities would be made public. This option is supported by, among others, Crime, Responsibility and Youth (CRY)(16 years of age), Stu and Margaret Garrioch (16 years of age), Provincial Advisory Committee on Crime Prevention and Community Safety - Prince Edward Island(16 years of age), Canadian Police Association (16 years of age), Mayor Ron Martelle of Cornwall (17 years of age), Victims of Violence (16 years of age), Kid Brother Campaign, Dan Newman MPP (15 years of age), and the Hamilton-Wentworth Police Services Board (16 years of age).

Having considered the preceding options, the Committee makes the following recommendation.

RECOMMENDATION 10

The Committee recommends that the Young Offenders Act not be amended to change the maximum age.

TRANSFERS TO ORDINARY/ADULT COURT

BACKGROUND: Under the Juvenile Delinquents Act, a Youth Court judge could order that a 14-year-old who had committed an indictable offence be transferred to ordinary/adult court if the judge was satisfied that the good of the child and the interest of the community required it. This Act did not specify who could apply for such a transfer order. Under the Young Offenders Act, an application for transfer to ordinary/adult court may be made before the Youth Court by either the Crown or the defence where the young person is alleged to have committed an indictable offence after having attained the age of 14. If the young person is 16 or 17 years of age at the time of the alleged offences of murder, attempted murder, manslaughter or aggravated sexual assault he or she is to be prosecuted in ordinary/adult court unless, upon application, a Youth Court judge orders the proceedings to occur in youth court. There is provision for such order of transfer to the youth court to be issued on consent of the Crown and defence without the requirement for a hearing at which full evidence would have to be adduced . The present Act sets out a series of criteria that the court must consider and balance in determining whether a transfer order should be issued. Under both the former and the present Acts, the transfer to ordinary/adult court issue was/is dealt with before a determination of the young person's guilt.

Option 1: Retain the status quo. Proponents argue that the present system is adequate to deal with the most serious forms of youth offending where the length of disposition and the programs or services available in the youth justice system are inadequate or inappropriate for denouncing the offence committed and addressing the underlying problems associated with it. The four serious offences targeted for "reverse onus" treatment do not have to be expanded because they represent the offences committed by young people that are of most concern to Canadians. This option is supported by the Manitoba Minister of Justice. Others supported this option with serious criticisms as to its present formulation and some of the practical and resource implications of the status quo - some of the comments are reflected in the following options, and still others were too detailed and technical for inclusion here.

Option 2: Repeal the transfer provisions in their entirety. Those who support this option argue that the youth justice system should deal with all young offenders, no matter what offence they are alleged and found to have committed. Putting these young people into the adult criminal justice system, means that they are going to be victimized and exploited by older, more experienced offenders; this would have the effect of reinforcing offending behaviour patterns and making the prospects of rehabilitation dismal. Transferring young people to the adult criminal justice system reflects the failure and inadequacy of the youth justice system. This option is supported by, among others, various John Howard Societies, the Canadian Association of Elizabeth Fry Societies, Defence for Children International - Canada, and Herbert Allard.

Option 3: Repeal the presumptive transfer/ "reverse onus" provisions added by Bill C-37. Those who support this option argue that the previous transfer provisions were adequate for dealing with the relevant cases that come before the youth court. They also say that not enough time has passed since the 1992 amendment to the transfer provision to allow for a proper evaluation of its impact. These most recent provisions will result in more transfers to ordinary/adult court - not a desirable goal for legislation in relation to the youth justice system. This option is supported by, among others, the Child Welfare League of Canada, the Elizabeth Fry Societies of Vancouver and Kamloops, Commission des services juridiques, Montreal Y Impact Program, Mona Lynch of Nova Scotia Legal Aid, Canadian Foundation for Children, Youth and the Law, Learning Disabilities Association of Canada, Society for Children and Youth in British Columbia and the Child Guidance Clinic of Winnipeg.

Option 4: Add more offences to the presumptive transfer/ "reverse onus" provisions. Those who support this option argue that the present provisions do not capture all of the most serious offences committed by young people. They also argue that these provisions should be expanded to capture young offenders who are habitual criminals or commit many series of offences. This option is supported by the Alberta Minister of Justice and by many of those who support the next option.

Option 5: There should be automatic transfer to ordinary/adult court of young people, no matter what their age, alleged to have committed such serious offences as murder or sexual assault. Those who support this option argue that the most serious offences should be treated severely by the criminal justice system no matter what the age of the alleged perpetrator. Such denunciation by the criminal law and such severe treatment will have a deterrent effect on those contemplating the commission of such serious crimes. The youth justice system is not the right place to deal with such offences and offenders. Serious adult crimes committed by young offenders deserve serious adult penalties. This option is supported, among others, by Eric Spears, Stu and Margaret Garrioch, Crime, Responsibility and Youth (CRY), Canadian Police Association, Ron Martelle (Mayor of Cornwall), Kid Brother Campaign, Dan Newman MPP and the Hamilton-Wentworth Police Services Board.

Option 6: Replace the present pre-adjudicative system by a post-adjudicative system. Proponents argue that the present system is defective in that the pre-adjudicative transfer takes place upon the assumption that the offence alleged has taken place and has been committed by the alleged young offender. This is inconsistent with one of the basic principles of the criminal law, the presumption of innocence until guilt has been proved beyond a reasonable doubt by the Crown. Under the present system, much of the same evidence presented to a Youth Court judge during a transfer hearing will have to be presented again to the ordinary court during the trial or the sentencing hearing. Since the real impact of a successful transfer is on the sentencing options available to the court, it does not make sense for the transfer decision to be made before there has been an adjudication as to criminal liability. If this option is accepted, the Crown should have to indicate at the outset of the criminal proceedings that a post-adjudication transfer application would be dealt with by the court as part of the sentencing hearing. This approach was proposed by the Federal-Provincial-Territorial Task Force on the Youth Justice System (except for Ontario) in its report. This option is supported by, among others, Professor Nicholas Bala, Commission de protection des droits de la personne et de la jeunesse, the Federation of Saskatchewan Indian Nations and the British Columbia Civil Liberties Association.

Having considered the preceding options, the Committee makes the following recommendation.

RECOMMENDATION 11

The Committee recommends that the Young Offenders Act be amended so that the non-presumptive transfer provisions can be invoked at the post-adjudication, dispositional stage of proceedings.

The Committee further recommends that the presumptive transfer provisions contained in Bill C-37 be evaluated by the Department of Justice within three years and that the findings and recommendations of the review be reported back to the House of Commons Standing Committee on Justice and Legal Affairs.

PARENTAL INVOLVEMENT

BACKGROUND: The role and interests of parents and families are acknowledged and recognized in the Declaration of Principle of the Young Offenders Act at section 3(f) and (h). The importance of the parent-young person relationship and the continuity of parental care are identified as desirable policy objectives for the youth justice system. The Act provides in a number of places for notice to be given to the parents of a young person. Among the circumstances in which such notice has to be given are: in case of arrest or detention, in case of a summons, appearance notice, promise to appear or recognizance, in case of a mental disorder application under the relevant provisions of the Criminal Code, in case of a placement hearing after a conviction in ordinary/adult court, in case of applications for continuation of custody and in case of review of level of custody. None of these provisions requires parental attendance and no sanction is available for failure by parents to attend. However, if a parent is not present in Youth Court and the judge decides that parental attendance is necessary, an order compelling such attendance can be made. Such attendance can be compelled by way of warrant and failure to attend can be punished by a finding of contempt of court. A number of provisions in the Act require that parents be provided with copies of reports and other documents. There are no provisions in the Act dealing with either the civil or criminal liability of parents for the actions of their children. Several provisions in the now-repealed Juvenile Delinquents Act established criminal liability for adults contributing to the delinquency of young people and parents negligently "conducing" in the acts of their children. These provisions were not included in the subsequently adopted Young Offenders Act.

Option 1: Retain the legislative status quo and increase the parental/family role in the youth justice system. Those who support this option acknowledge the importance of parents and families, and recognize that they are often marginalized by the youth justice system rather than being drawn upon as an essential rehabilitative resource. Policies and programs have to be put into place to more fully integrate parents and families into efforts to work with young offenders. Not only must these changes be made, but the attitudes of professionals in the youth justice system must become more inclusive in relation to the involvement of parents and families with their young people. Much of this can be done with little or no legislative change. This option is supported by, among others, Association des centres jeunesse du Québec, the Council of Yukon First Nations, Church Council on Justice and Corrections, Child Welfare League of Canada, Kamloops Elizabeth Fry Society, Commission des services juridiques, National Crime Prevention Council, Interfaith Committee on Youth Justice, Fondation de la Cité des Prairies, Crime, Responsibility and Youth (CRY), Canadian Association of Chiefs of Police, Professor Jean Trépanier, Canadian Foundation for Children, Youth and the Law, Mary Jane Doe and Probation Officers Association of Ontario.

Option 2: Allow the Youth Court to impose mandatory counselling orders on the parents and families of young offenders. Those who support this option express concern about returning a young offender at the end of a disposition to an unchanged family and community situation which, if not addressed in some way, will undo whatever change there has been in the young person. They see such mandatory counselling orders as a way of dealing with this situation. They also argue that some parents are irresponsible in not properly supervising their children, and need help in recognizing this and developing the required skills. Such orders must be made mandatory because those who most need this type of help will not voluntarily seek it out. This option is supported by, among others, the Canadian Resource Centre for the Victims of Crime, Edmonton Police Service, Provincial Advisory Committee on Crime Prevention and Community Safety - Prince Edward Island, Probation Officers Association of Ontario and the Yukon Department of Justice Citizens Advisory Committee.

Option 3: Impose vicarious criminal liability upon parents for the criminal acts of their children. Those who support this option argue that in many instances parents are actively involved in the offences committed by their children or are so neglectful in their parental obligations as to fail to remedy the behaviour that leads to criminal involvement. In either case, the parents should be criminally liable for the offences committed by their children. The expectation is that exposure to such criminal liability will act as an incentive to parents to take the necessary steps to deal with the offending behaviour of their young people. It is urged that provisions similar to those contained in the Juvenile Delinquents Act on adults contributing to delinquency and imposing a sanction in the form of a fine on negligent parents should be incorporated into the present Act. (Note: The concept of vicarious liability for the actions of another person is unknown to Canadian criminal law.) This option is supported by, among others, Canadian Resource Centre for the Victims of Crime, Eric Spears, Stu and Margaret Garrioch, J.A. Boothman and Crime, Responsibility and Youth (CRY).

Option 4: Impose vicarious civil liability upon parents for the criminal acts of their children. Those who support this option make many of the same arguments as are made in relation to option 3. They support legislation such as that recently adopted in Manitoba and under consideration in Ontario that has the effect of presuming that parents are civilly liable for the criminal acts of their children and in order to avoid civil liability requiring them to prove they have not been negligent in discharging their parental obligations. Some who support this option urge that parents be made responsible for the legal aid costs of defending their children and for the damage suffered by the victims of the criminal acts. They recommend that the Act be amended to allow the youth court judge, after finding the young person guilty of an offence, to order the parents to pay legal aid costs and compensation or restitution to the victim. (Note: Under Canada's constitution, issues of civil liability are generally considered to fall under provincial jurisdiction.) This option is supported by, among others, Canadian Resource Centre for Victims of Crime, Eric Spears, Stu and Margaret Garrioch, J.A. Boothman, Provincial Advisory Committee on Crime Prevention and Community Safety - Prince Edward Island, John Moerman, Victims of Violence, Canadian Police Association and the Manitoba Minister of Justice.

Having considered the preceding options, the Committee makes the following recommendation.

RECOMMENDATION 12

The Committee recommends that the Young Offenders Act be amended to provide that parents or guardians be required to attend Youth Court whenever a notice is sent to a young person provided, however, that a Youth Court judge could excuse a parent or guardian in exceptional circumstances.

PUBLICATION OF NAMES

BACKGROUND: The Juvenile Delinquents Act required youth court proceedings to be held in private, away from the public and the media. The identity or information leading to the identity of a young offender could not be published in the media without a special youth court order. Such orders were rarely, if ever, issued. Under the Young Offenders Act, the public may attend and the media may report upon proceedings of the youth court provided the identities and information leading to the identification of young offenders are not revealed. There are several exceptions to this prohibition. The identification of a young offender transferred to ordinary/adult court may be revealed. Where a young person is a danger to others and is at large, the youth court may authorize the release of his or her name for 48 hours if such publication is necessary to assist in his or her apprehension. If a young person makes an application to the youth court for the release of his or her name to the public and the Court concludes it is not contrary to his or her best interests, such publication can be authorized. The youth court may, on application by the Crown or a peace officer, authorize the release of information to designated persons if the young person has been found guilty of an offence involving serious personal harm, or if the young person poses a risk of serious personal harm to other persons and it is necessary to divulge his or her identity or identifying information in order to avoid the risk of such harm. Information may be shared with school officials about a young offender where such a step is required to ensure the safety of staff, students and other persons.

Option 1: Retain the status quo. Those who support this option argue that the release of the identities of young offenders to the public will label and stigmatize them without in any way increasing the level of safety in the community. The exceptions to the general rule of confidentiality allow the youth justice system and the court enough flexibility to make this information publicly available in circumstance where it can be of most use. Interested people can attend youth court proceedings and see what goes on there generally and in relation to specific instances of youth offending; this is in stark contrast to the former Act which required that proceedings be held in private. In any event, family, friends and neighbours usually know who the young offenders are, even if their names are not officially published. This option is supported by, among others, Mona Lynch (Nova Scotia Legal Aid), Provincial Advisory Committee on Crime Prevention and Community Safety - Prince Edward Island, various John Howard Societies, Young offender "C.P.", Society for Children and Youth in British Columbia, Canadian Association of Elizabeth Fry Societies, Prince Edward Island Teachers Federation, Herbert Allard, John Prystanski and the British Columbia Civil Liberties Association.

Option 2: Allow for publication of the names of serious, violent, chronic, and/or repeat young offenders. Those who support this option argue that the public has a right to know the identities of these young offenders so that they may take appropriate precautions for their own safety and that of their families. They should know whether the young people with whom their children associate or whom they may have as babysitters, coaches or camp counsellors have committed serious offences. The proponents do not accept the argument that the release of identities will have a labelling or stigmatizing effect on the young offenders involved; they see this as social science theory that may have been valid at one time but has outlived its usefulness. This option is supported by, among others, Reta Jarvis, Eric Spears, Stu and Margaret Garrioch, the Society for Restoration of the Lash, the Work House and Capital Punishment, Tracy Christie, Liz Haid, Yukon Health and Social Services, Crime, Responsibility and Youth (CRY), L. Drinovz, Canadian Police Association, Victims of Violence, Mary Jane Doe, Kid Brother Campaign, Dan Newman MPP, Hamilton-Wentworth Police Services Board, Alberta Minister of Justice and the Union of British Columbia Municipalities.

Having considered the preceding options, the Committee makes the following recommendation.

RECOMMENDATION 13

The Committee recommends that the Young Offenders Act be amended to provide Youth Court judges with discretion to allow the general publication of the name of a young offender in circumstances where persons are at risk of serious harm and where for safety reasons, the public interest requires that this be done.

ADMISSIBILITY OF STATEMENTS

BACKGROUND: The Juvenile Delinquents Act contained no provisions dealing with the admissibility into evidence before the courts of statements made by young persons to police or persons in authority. Instead, the courts applied the common law as it then was and a number of guidelines of which the principal were: an adult relative could accompany the young person at the time of questioning, the young person was to be cautioned about the implications of making a statement to police, the questioning was to take place as soon as possible, and the young person charged was to be told the nature of the alleged offence. Section 56(2) of the Young Offenders Act provides explicitly for the elements that have to be taken into account by a youth court judge in determining whether a statement by a young person, under detention or arrest, or suspected of committing an offence, to a peace officer or person in authority was voluntary and hence admissible in evidence. These conditions must be respected for a statement to be admissible. Among the elements that have to be taken into account under section 56(2) are the following: the statement has to be voluntary; the young person has to receive an explanation in language appropriate to his or her age, that there is no obligation to give a statement, that any given statement may be used in evidence against him or her, that the young person has a right to consult counsel and another adult person, and that any statement made by the young person is to be made in the presence of counsel and the adult person unless this right is waived; the young person has to be given a reasonable opportunity to consult with counsel and a parent, adult relative or other adult before making a statement; and the young person has to be given a reasonable opportunity to make the statement in the presence of the person consulted. Other parts of section 56 allow for the young person to waive some or all of these rights. The controversy in this area relates largely to the lack of discretion given to the youth court judge to admit evidence when violations of section 56(2) are technical and relatively minor in nature. The Supreme Court of Canada has taken a strict view of this provision, requiring that all the conditions set out in section 56(2) be respected in order for statements by young persons to be admissible in evidence against them. Very few submissions to the Committee dealt with this issue, although it was addressed in several submissions when Bill C-37 was being considered. Concern about the complex form to be filled out to fulfill the requirements of section 56(2) in its present form was expressed by the Canadian Association of Chiefs of Police delegation during its appearance before the Committee.

Option 1: Retain the status quo. Those who support this option argue that young persons are vulnerable and often intimidated by their contact with the police. Because of this vulnerability and the fact that they are suggestible and will thus go along with what is expected of them, they need special protection when it comes to the taking and admissibility of their statements. The provisions set out in section 56(2) should be followed strictly, as the Supreme Court of Canada has done, and thus protect the rights of all young persons regardless of their age, maturity or exposure to the youth justice system. To allow for the exercise of judicial discretion in the admissibility of statements by young persons would embark on the slippery slope of reducing the rights of all young offenders giving statements to persons in authority. Some of these concerns were expressed by the Canadian Foundation for Children Youth and the Law in its written submission on this issue.

Option 2: Provide for the exercise of judicial discretion in determining whether statements by young persons to peace officers or persons in authority should be admitted into evidence against the young persons by youth court judges. Those in favour of this option support section 56(2) in its present form except for the requirement that all its elements be fully respected for statements, to be admissible. They argue that there must be provision for the courts to consider all the circumstances - an inflexible formula setting out strict conditions precedent is not adequate. This leads to voluntary statements to persons in authority being ruled inadmissible for minor, often technical, violations of section 56(2). It is argued that this provision in its present form does not take into account the age, maturity and sophistication of some young people with extensive involvement with the youth justice system. It does not allow for the good faith efforts of peace officers to respect the demanding requirements of the law in at times difficult circumstances. This provision of the Act should allow the judge, in applying its requirements, discretion to admit statements into evidence where to do so would not bring the administration of justice into disrepute. Youth court judges would be able to consider statements in light of the impact of their admission into evidence upon the fairness of young persons' trials. This option was recommended in the report of the Federal-Provincial-Territorial Task Force on Youth Justice and supported by the Attorney General of British Columbia in his written submission.

Having considered the preceding options, the Committee makes the following recommendation.

RECOMMENDATION 14

The Committee recommends that Section 56(2) of the Young Offenders Act be amended to provide for the exercise of judicial discretion in determining whether statements by young persons to peace officers or persons in authority may be admitted into evidence against them by Youth Court judges, where to do so would not bring the administration of justice into disrepute.