Sgt. Smith to teen shoplifter, by phone: ‘This is Sgt. Smith of the Winnipeg police. I understand you are being held for shoplifting. I am hereby warning you.’

Teen shoplifter: ‘Huh?’

Smith: ‘I am warning you.’

Teen: ‘OK?’

-end conversation

[Three days later, different store, same cop, same shoplifter, by phone]

Sgt. Smith: ‘This is Sgt. Smith of the Winnipeg police. I understand you are being held for shoplifting. I am hereby cautioning you.’

Teen: OK.

Sgt. Smith: ‘You are hereby cautioned.’

-end conversation

It’s often stated that the kids who actually wind up in custody at the youth centre and have to go before a judge are just the top of an iceberg in the city in terms of the number of offences committed by kids.

Under the YCJA — and its current focus on rehabilitation and ‘meaningful consequences’ for kid offenders — there’s a huge number of diversion tactics, known as extra-judical measures and sanctions that are often used as a first, last resort to scare non-violent kids from crime and keep them out of the court system.

Will the police consider these measures for me?

Yes. A police officer must consider using an extrajudicial measure if the offence is non-violent and if you have not been found guilty of a previous offence.

The Youth Criminal Justice Act sets out as a key principle that it should be presumed that an extrajudicial measure will be sufficient to hold a young person accountable for his or her behaviour.

These sanctions can range on a quasi-sliding scale from a police warning and caution [as evidenced above from a real-life example] to Crown warnings and cautions and voluntary referrals to programming etc.

In other words, it’s a number of ‘first, last chances’ before actually being charged with a crime and having to come to court.

While Bill C-10, the federal government’s omnibus crime bill, won’t remove these measures [that I know of], it does propose to make a major change that should prove revealing regarding their effectiveness.

Judges will now be told of them in court, and Crowns can rely on prior uses of extrajudicial measures as a reason for jail in indictable [serious offences]

Today, I’ve yet to hear of a judge be told of a kid’s pre-criminal history, of efforts made by police and justice officials to give them chances to get right or else.

The YCJA reads as follows today:

Clause 173: Relevant portion of subsection 39(1):
39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or …
And is set to be changed to:
A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

It’s another, dare I say, clever way of the federal government to try and put some sharper teeth into our youth justice laws.

It’s also one I have yet to hear word one about.

The question is: does so-called small crime like shoplifting pave the way towards more substantive offences?

Some authorities say yes — and the tale of ‘Burglar Jimmy’ is one example of this.

The only issue I can see with the proposed rule is that now cops and Crowns will have to keep detailed records of how many times they gave Jimmy a chance before he burned down the house or mugged the maid. I’m not 100 per cent sure they do right now.

[See comment below].

-30-

As an aside: Could we please legislate in C-10 the addition of that peculiar British vernacular where being convicted of a crime, or getting arrested is referred as: “Got done for?”

Example: “I got done for drink drive when I was 18 and never got my license back,” said Ms. Butterfarthing.

12 thoughts on “Bill C-10 and the YCJA: an important note

  1. Don’t forget the finger-wag. There is a step in law in which the officer must wag his or her finger in the face of the delinquent juvenile. They can do it over the phone, but it has a greater deterrent effect in-person.

    Judges can also do it at a bail release or at sentencing.

    1. 49.3 (1)(b) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless the police, at their discretion, have utilized the requirement under section 234.1 (a)(c)(iii) to demonstrate an energetic movement of BOTH the distal and intermediate phalanges of one digit joined to a metacarpus.

  2. When I first became a police officer, juveniles (as they were then known) were dealt with under the Juvenile Delinquents Act. That Act gave police and justice officials a substantial degree of discretion in terms of how to deal with offenders. In many instances such as shop lifting, offenders were dealt with informally even under that Act. Winnipeg Police used to run what was know as a “First Offender Class”. As opposed to going to Juvenile Court, first time offenders were given the opportunity to attend a class on a Saturday morning. Attendance was voluntary (but if you chose not to attend the case would be referred to the normal court process). The carrot was, if you attended and did not reoffend for a set period of time you would not have a ‘juvenile record’. The class, taught by members of the Juvenile Division, was a basic Civics 101 lesson and dealt with the consequences of criminal activity and the importance of non-criminal behaviour from a long term perspective. Hundreds of Winnipeg kids went through that class. The recidivism rate was close to zero. The whole secret was for police in the first instance being able to identify which offenders would benefit more from the class than the court process, and which offenders would not. Extra Judicial measures if properly applied can have a beneficial effect for some offenders.

    Having said all that there must be a recognition that some young offenders will not benefit from being given a second chance and should not be given a get out of jail free card. The difficult part is making the initial assessment and determining which offenders fall into which category. It is more of an art than a science.

      1. The Youth Division morphed from a division that investigated crimes committed by youths to a Division that concentrated on crimes committed against youths and other vulnerable persons. At that time auto thefts and violent crime committed by young offenders was not the issue it later became and still is presently. With the benefit of hindsight, it might have been better to maintain the Youth Division’s investigative capability (for crimes committed by young offenders) while at the same time increasing its investigative capability regarding vulnerable persons as opposed to shifting the responsibility for the investigation of youth crime to the general patrol divisions.

        It is something that perhaps should be revisited.

  3. As it stands now, police do in fact keep a “record” in instances where a youth is processed by way of an exdrajudicial measure such as a “police warning” or a “police caustion”. When these measures are implemented, the warning or caution is recorded as a type of disposition within the police reporting system.

  4. I’d like to see a provision in the YCJA which permits the naming of violent, repeat offenders. No more protection for these goofs. Their actions SHOULD have consequences which follow them into adulthood.

    The So****, Ro***** and Lan**** of the world do not get to be anonymous offenders. [Relax…all surnames taken from MB courts website.]

    Instead of seeing advertisements for cell-phone plans on city bus shelters, it would be great to see 4×7′ “community notification” posters with the images of these people. It would act as a deterrent, a means of prevention and an educational tool all at once. The cost to society would be minimal.

    If the offenders don’t like my idea, they’re free to become productive, contributing members of society at any time.

  5. I appreciate where the surnames came from McLeod, but I don’t have a team of lawyers ready to defend me against a contempt of court charge for this blog.

    Interesting idea though. But then why not do the same for repeat violent adult offenders too?

    1. James, please accept my apology if you felt naming names (although already disclosed through MB Courts on their website) had the potential to cause any legal difficulties. Clearly not my intent.

      I’m all for naming serial, violent adult offenders too. I only brought up the YCJA as it actually protects those whom it has jurisdiction over. What about protection for the victims and potential victims?

      The public has every right to know when violent, repeat/serial criminals are living in our communities. They are a threat to well-being and clearly do not care about the impact of the victimization process.

      The police service needs to name names. This is something which IS in their capacity to do (they are in the business of PUBLIC SAFETY are they not?) and would benefit the citizens by increasing the awareness of WHO is out there to and will likely try to victimize them at some point.

      Let’s see some new crime-fighting initiatives. Something bold and effective. Something which makes liberals quiver and shake with anger.

      [Rick Flair Woooooooooooooooooo! goes here]

  6. Just so you know just as many Con’s voted this act in as libs, was there for the vote way back when. Knew then that the end result would be what we have now .

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