The use of custody under the Youth criminal justice act: a review of section 39, Prohibitions on the use of custodial sentences
Krawchuk, Marianne D.
The problem of youth deviance is a concern to many people. Canadian youth justice legislation has changed dramatically in the past century; from a child-welfare approach under the Juvenile Delinquents Act (1908), to a more legalistic ‘due process’ paradigm under the Young Offenders Act (1984), to the current Youth Criminal Justice Act (YCJA, 2003) which promotes the rehabilitation and responsibility of young offenders. The following study examines cases to determine the manner in which a specific section of the YCJA, s. 39 (prohibitions on the use of custodial sentences) is being used in judges’ decisions, and if so, if it is being used consistently and appropriately. Quantitative and qualitative analysis were used to examine related Canadian case law. The databases LexisNexis Quicklaw and WestlawECarswell, using the search terms “YOUTH CRIMINAL JUSTICE ACT,” “YCJA,” and “s. 39” were used to narrow down cases in which this section of the YCJA was mentioned. This search process yielded a total of 210 cases, seventy-seven of which were appeals. The appeals were analyzed qualitatively and the other cases were analyzed quantitatively. It was found that one problem in implementing s. 39 and using it consistently in sentencing appears to be judges’ uncertainty about the appropriate use of the legislation resulting from the lack of clarity within the legislation itself. Parts of the legislation were left open for interpretation, such as the definition of a violent offence, or what was to be considered an exceptional case. It is argued in this study that for any legislation to work, it must be clearly written to reduce as much subjectivity and level interpretation as possible. While judges are often criticized for their decision-making in sentencing, they are limited by the legislation that is in place. Therefore, if there are problems in the practice of the court system, the solution lies in revamping the written law first.