The regulation of young offenders’ private information in the Canadian youth criminal justice system: the semantics of repression
posted by:Veronica Pinero // 08:32 PM // September 06, 2005 // ID TRAIL MIX
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.
