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7. Youth Justice and Children's Rights: Transformation in Canada's Youth Justice System
- Wilfrid Laurier University Press
- Chapter
- Additional Information
Myriam Denov, Faculty of Social Work, McGill University Introduction: Trends in Youth Justice and Children’s Rights The weight is still balanced in favour of the young offender in this country. The protection of society, the protection of our children, is still outweighed by the so-called rights of violent and delinquent young Canadians. All we are asking is that the scales be evened out, that the rights of victims, the rights of our children be given priority. We ask that the protection of society outweigh the protection of violent young offenders who have no respect for the lives and rights of others.1 Few issues in Canada have stirred public debate as much as youth crime and the way our criminal justice system responds to young offenders. Many Canadians appear to support the notion of children’s rights in theory; yet as the above quotation clearly illustrates, implementing children ’s rights in everyday practice—especially for children in conflict with the law—remains an ongoing challenge. In a socio-political context that has long advocated punitive responses to youth crime, the idea of ensuring rights for young offenders may invoke varying degrees of discomfort and opposition, as it may be perceived as a direct or indirect threat to the rights of victims of crime or to the overall protection of society. Moreover, guaranteeing the rights of young offenders enables young people to exercise choices, ask questions, challenge procedures, and 7 Youth Justice and Children’s Rights Transformations in Canada’s Youth Justice System Myriam Denov 153 have the opportunity to be heard in proceedings; all of this may defy traditional assumptions about young people and the criminal justice process. Having ratified the UN Convention on the Rights of the Child (CRC) in 1991, the Canadian government pledged its commitment to meeting the needs and respecting the rights of Canadian children,2 including children in conflict with the law. Through articles 37 and 40, the CRC sets out the fundamental principles that should guide the treatment of children who come into conflict with the law and that recognize their rights of general due process. Article 37 provides guarantees for children deprived of their liberty. It states that every child who is deprived of his or her liberty should be treated in a manner that takes into account the needs of persons his or her age—for example, the need to maintain contact with family members (articles 37 and 9) and friends (article 15); to engage in play, leisure and recreational activities, cultural life, and the arts (article 31); to enjoy their own culture, practice their own religion, and use their own language (article 14 and 30); and to continue their education (article 28). Also, children who are incarcerated should be separated from adult offenders (article 37). When ratifying the CRC, Canada made a reservation with respect to article 37(c). This article requires that children who are deprived of their liberty “be separated from adults unless it is considered in the child’s best interest not to do so … save in exceptional circumstances.” Canada has chosen not to be bound by this provision, and as a result, young offenders can be housed in adult facilities. Article 40 addresses the right of every child who has infringed the penal law (or who is accused of having done so) to be treated in a manner that takes into account the child’s age and the desirability of promoting his or her reintegration into society. Article 40 discourages a focus on punishment; it also embodies the right to due process of law as well as the principle that recourse to formal proceedings and deprivation of liberty should be avoided whenever possible and appropriate. The CRC serves as an umbrella treaty for three international juvenile justice instruments: the 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules); the 1990 UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines); and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules). Yet despite the presence of these protective international conventions and their near global ratification, abuses and violations of the rights of children in conflict with the law continue to occur worldwide. In fact, evidence gathered and presented in many state party reports indicates that policies toward imprisoned children violate as many as twenty of the Convention ’s forty-one substantive rights provisions.3 Examples of these state 154 Myriam Denov [3.238...