When the Medium Eats the Message: the gap between intention and outcome in youth justice

Much ink, and not a few tears, are being spilled over the state of Canada’s youth criminal justice system. News reports detail the damage caused by out-of-control adolescents, teens killing teens seems to take up increasing space in the police blotter and public imagination, and the federal government, in response to this apparent takeover of childhood by little Lords of the Flies, is proposing changes to the law that would make it easier for courts to lock up kids who can’t be trusted to live free in the peaceable kingdom.

Although it might stretch institutional memories to do so, it’s important to recall why the Youth Criminal Justice Act (the “Act”) was created in the first place, way back in 2002. Canada had the world’s highest rate of youth incarceration, and the legislation explicitly recognises that one of its purposes was to end this shameful distinction by incorporating a range of alternative options and less restrictive measures to deal with youth crime. Now, not even six years later, we seem intent on reclaiming our place as leaders in imprisoning children. What’s going on?

I know some of the reasons for the frustration that’s pushing us to turn back the clock. I’ve been in courtrooms where judges push up their glasses and glower at some unresponsive rascal that but for the Act, they’d make damn sure they couldn’t take that smirk back onto the streets. I’ve used the law to argue that my clients can’t be sent to jail, even when every shred of evidence indicates that their chances of cleaning out in the community are slim to nil. I really can’t apologise – this is the way our justice structure works, or, distressingly, doesn’t. The system that I know gives little criminals plenty of apparent slack, but rarely ever lets them go: before most wake up to what’s happening, the long leash of youth law, drawing slightly tighter with each soft sentence that’s too easy to breach, becomes a constricting tangle that diminishes the chance they’ll successfully outgrow offending ways. Certainly, it’s a problem we must address.

I fail to see, however, how harsher sanctions, on their own, will ameliorate the messy situations that the youth justice system is created to face. We’ve got to ask, why do we have a separate structure for adolescents to begin with, and how are its differences applied to youth in trouble with our universal criminal law? As the Act rightly evokes (although perhaps unfortunately only in regards to those under 18), the entire idea is to promote “timely”, “meaningful” measures, those that cultivate and focus our collective adult wisdom and resources upon the most fragile, tender members of society. And let me be clear, even though most teenagers do their aggravating best to maintain bad-ass or who-me masks, the sheer chasm between whatever it is they’ve done and what they understand of the implications or consequences involved makes me want to cry. More so, the difficulties most face in developing and maintaining healthy relationships makes me want to adopt them.

While kids may not be so different from many adults in this respect, its galling obviousness among youth – and the sustaining hope that appropriate early interventions can have life-changing effects – provide ample justification for a special approach to youth justice. But here’s the rub. In terms of legal practices and procedures – the medium by which we expect to communicate this oh-so important message of “responsibility and…accountability”, I can discern precious little difference between the youth and adult systems. Once the courts become involved in a kid’s life, defence lawyers like me get paid to, in essence, get in the way to protect our pint-sized clients from the worst – but also potentially most meaningful – of society’s attempts to respond to criminal conduct. Because it’s our job, we use all the levers and illusions available to us to temper a prosecution’s zeal, but too often our machinations distort, and sadly even sever, the key association between act and accountability that matter to any real learning of how one needs to behave. By the time kids plead guilty – as the vast majority do after months of increasingly disconnected court appearances, just to get it over with – most have an understandably mangled insight into what’s happening to them, why, and what it means in terms of their development as members of a moral community. Without the fostering of these links, is it any surprise that mischievous 14 year-olds (most of who already suffer from inadequate family support and stability) learn that justice is at best a tedious game, at worst a moronic force to be withstood or rejected?

If I had my way, I’d make the youth justice system indelibly distinct: every kid clutched onto by the court system would get an advocate that ensured that their rights were respected, and would, with all sensitivity and necessary moral guidance, help them express their perspective on what may have happened. Then, if a wrongdoing is accepted, all appropriate actors, with a minimum of adversarialism and wasted time, would get together to determined the best way to relay the message that yes, this young person is cared about, but no, actions that hurt others can’t be condoned. Of course we’d fall short of our ideals, time and again – finding a shared sense of justice, especially across generations, is among the hardest of tasks I can imagine, but if we really wanted to manifest our seriousness about passing on the “meaning” of integrated accountability to our young people, this would be an approach I could pour my heart into.