The regulation of young offenders’ private information in the
Canadian youth criminal justice system: the semantics of repression
By: Veronica Pinero
September 6, 2005
In
1918, George Mead drew a significant distinction between the adult
criminal court and the juvenile criminal court. He noted that:
[i]t
is in the juvenile court that we meet the undertaking to reach and
understand the causes of social and individual breakdown, to mend if
possible the defective situation and reinstate the individual at fault.
This is not attended with any weakening of the sense of the values that
are at stake, but a great part of the paraphernalia of hostile
procedure is absent. (George Mead, “The Psychology of Punitive Justice”
(1918) 23 Am. J. Soc. 577 at 594)
Part
of the above mentioned “paraphernalia of hostile procedure” was the
resort to open criminal trials and the possibility of making available
to the public the name of the convicted offenders. In order to prevent
the young offender from the undesirable outcomes attached to those
practices, for instance social exclusion, marginalization, and
stigmatization, in the year 1892 Canadian parliamentarians passed
legislation to regulate such an issue.
Section 550 of the 1892 Canadian Criminal Code
stated that “[t]he trials of all persons apparently under the age of
sixteen years shall, so far as it appears expedient and practicable,
take place without publicity, and separately and apart from that of
other accused persons and at suitable times to be designated and
appointed for that purpose” (Criminal Code, 1892, Statutes of Canada,
1892, c. 29 at s. 550). The reason for that regulation was to avoid the
undesirable outcomes attached to criminal procedures in an attempt to
facilitate the reintegration of the young offender in society.
Such
a section was amended in the year 1894 in order to strengthen the
restriction on the publicity of the private information of young
persons: “[the trials of young persons apparently under the age of
sixteen years, shall take place without publicity and separately and
apart from the trials of other accused persons, and at suitable times
to be designated and appointed for that purpose.” (An Act respecting Arrest, Trial and Imprisonment of Youthful Offenders, 1894, c. 58, s. 1).
The above mentioned philosophy continued with the enactment of the Juvenile Delinquents Act (An Act Respecting Juvenile Delinquents,
S.C. 1908, c. 40, s. 10). Moreover, the legislation enacted in the year
1929 introduced more restrictions to the possibility of making
available to public the private information of young offenders involved
in criminal procedures (An Act respecting Juvenile Delinquents, S.C. 1929, c. 46, s.12).
On July 7, 1982 the Young Offenders Act
received Royal Assent. With regard to the privacy of young offenders,
this act introduced important changes to the regulation of the Juvenile Delinquents Act
that would completely modify the system. First of all, concerning the
privacy of youth court proceeding, this new piece of legislation opened
up youth court hearings to “ensure public scrutiny and monitoring of
the youth court system.” It seems that in this case the notions of “due
process” and “accountability” had priority to the protection of private
information of young people involved in criminal procedures. In
addition, the Young Offenders Act allowed the publication of
information concerning a young person who had been transferred to an
ordinary court and found guilty of the alleged offence. On the other
hand, except the situation mentioned above, the Young Offenders Act
criminalized the reporting by the press that did not respect the
anonymity of the young person involved, whether as an accused, as a
victim, or as a witness (Young Offenders Act, S.C. 1980-81-82-82, c. 110 at s. 38(2)).
On June 27, 1986, Parliament passed An Act to amend the Young Offenders Act, the Criminal Code, the Penitentiary Act and the Prisons and Reformatories Act (, S.C. 1986, c. 32.). This Act introduced several amendments to the Young Offenders Act,
among them, an amendment to the regulation of privacy of young persons.
This amendment increased the circumstances under which identifiable
information of a young offender could be made public:
38
(1.2) A youth court judge shall, on the ex parte application of a peace
officer, make an order permitting any person to publish a report
described in subsection (1) that contains the name of a young person,
or information serving to identify a young person, who has committed or
is alleged to have committed an indictable offence, if the judge is
satisfied that (a) there is reason to believe that the young person is
dangerous to others; and (b) publication of the report is necessary to
assist in apprehending the young person.
As mentioned above, the Young Offenders Act
introduced a marked shift to the regulation of private information of
young persons involved in criminal procedures. Such a shift in the area
of youth privacy would be more evident after each subsequent amendment
to the Young Offenders Act. On April 9, 1992 Parliament enacted
another piece of legislation that would set up new changes to the
regulation of the privacy of young offenders: An Act to amend the Young Offenders Act and the Criminal Code
(, S.C. 1992, c. 11). This piece of legislation introduced amendments
to the regulation of privacy of young offenders by increasing the
number of situations under which youth court information could be
disclosed to third parties, such as schools and other authorities.
On February 19, 2002, the Youth Criminal Justice Act
received Royal Assent. Even though the rhetoric of this act recognizes
the importance of protecting the privacy of young offenders, it allows
open youth court proceedings (s. 132). In addition, although this piece
of legislation prohibits the publication of identifying information
about youths involved in the justice system, it permits the publication
of information that identifies young offenders that have received an
adult sentence, who have been convicted of very serious offences, or
who pose a serious risk to the public:
110.(1)
Subject to this section, no person shall publish the name of a young
person, or any other information related to a young person, if it would
identify the young person as a young person dealt with under this Act.
(2) Subsection (1) does not apply (a) in a case where the information
relates to a young person who has received an adult sentence; (b)
subject to sections 65 (young person not liable to adult sentence) and
75 (youth sentence imposed despite presumptive offence), in a case
where the information relates to a young person who has received a
youth sentence for an offence set out in paragraph (a) of the
definition “presumptive offence” in subsection 2(1), or an offence set
out in paragraph (b) of that definition for which the Attorney General
has given notice under subsection 64(2) (intention to seek adult
sentence); and (c) in a case where the publication of information is
made in the course of the administration of justice, if it is not the
purpose of the publication to make the information known in the
community. [...]
Although the rhetoric of the Youth Criminal Justice Act in the area of privacy of young offenders is slightly different to the rhetoric of the Young Offenders Act, the underlying normative regulation has not changed. To present (September 2005), the Youth Criminal Justice Act
has been amended three times; however, none of these amendments has
modified the regulation of privacy of young offenders as stated on the
2002 version.
In
the origins of the Canadian youth criminal law intervention, the
protection of private information of young persons involved in criminal
procedure was seen as a compelling matter for preventing issues such as
marginalization, social exclusion, and stigmatization. There was a
generalized perception that making available to public young offenders’
information would jeopardize their reintegration into society. In
addition, the “protection” of such information was seen as one of the
most important instruments for assuring the “social inclusion” of
former young offenders.
Even though the above mentioned “perceptions” about the undesirable
effects of making public young offenders’ information have not changed,
legislators have been able to “tolerate” this effect, in an attempt to
protect society from the “dangerous young offenders.” My question is
the following: is it possible to affirm that current regulation of
young offenders’ private information does protect society? Up to
present, the efficiency of such an intervention policy has not been
assessed. Nevertheless, the infringement of young offenders’ privacy
rights is notorious, and even more notorious is how this infringement
to privacy rights allows society to “exclude” such offenders. Besides,
current regulation of young offenders’ private information is actually
reinforcing the “paraphernalia of hostile procedure.” Nice paradox to
Mead.
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