Article DetailsJuvenile Justice Systems: Canada, South Africa and Tasmania, Australia |
| Date Added: March 17, 2009 10:19:10 PM |
| Author: Brandy Beardsley |
| Category: Government |
Part I: Introduction
In the United States, juvenile delinquents are treated in a manner different from adults. While each state imposes statutes dealing with juvenile delinquency, the different laws remain somewhat consistent across the states. That is, many states have a determined age of which to prosecute juveniles as juveniles or as adults and separate juvenile detention centers to assist juveniles in reforming themselves back to societal standards. However, not every country across the world is the same when it comes to juvenile delinquency. While Canada and South Africa’s juvenile justice systems remain quite similar to that of the United States, it is apparent that Tasmania, Australia’s juvenile justice system is more open to treating juveniles like adults.
Before the United States became “juvenile friendly,” juveniles were treated in much the same manner as adults, even imprisoned with adults. However, times have changed and juveniles now remain in a juvenile court system – unless they are on the age line of being treated as an adult. As with recent historical cases, the “age of adult” varies in range. Even then, young offenders are not whipped, burned or hung as they were in previous centuries. However, juveniles in other countries are at risk for minimal punishments that could cost them their lives.
Even though the United Nations has in place the United Nations Convention on the Rights of the Child, or UNCRC, juveniles are still put in danger’s path. According to the Juvenile Justice Panel (2006), “In many countries children’s and adolescents’ rights, as set out in the UNCRC and other international human rights standards, are being violated on a daily basis in juvenile justice systems” (p. 1). While the Juvenile Justice Panel (2006) does not specify “which” countries, it wrote, “The death penalty and life imprisonment are still being imposed in some countries for offences committed by children and adolescents under the age of 18, in direct contravention of international human rights standards” (p. 1). In addition, “More than 1 million children and adolescents are estimated to be in detention worldwide, the majority of whom do not belong there” (Juvenile Justice Panel, 2006, p. 1). According to the Juvenile Justice Panel (2006), the majority of these 1 million children remain in prison for being homeless, truant or for petty offenses (p. 1). Without solid demonstrations from countries such as the United States, Canada and South Africa, juveniles around the world are “left to rot” even if their only crime is having no where to go.
Part II: Canada
Canada’s juvenile justice system dates back for centuries. Before reform took place, juveniles were at risk for being charged and sentenced just like adults although English common law initiated “doli incpax” (The International Cooperation Group, 2004, p. 1). Doli incpax freed children under 7, and sometimes ages seven to 13, from being prosecuted like an adult (The International Cooperation Group, 2004, p. 1). However, as The International Cooperation Group (2004) wrote, “The presumption of incapacity could be rebutted by establishing that the child had sufficient intelligence and experience to know the nature and consequences of the conduct and to appreciate that it was wrong (p. 1). The rebuttal that took place against the juveniles did not seem to consider the why behind the delinquency.
During the eighteenth century, Canada’s juveniles came from various parts of the world. While the juveniles started out on the journey with their families, many of the juveniles became orphans by the time they reached Canada (The International Cooperation Group, 2004, p. 1). Likewise, The International Cooperation Group (2004) noted that many juveniles were deserted by their families due to the women who followed their men during the time of military needs (p. 2). Canada’s juveniles not only came from across the seas with their families, but also these juveniles came from places like Britain’s child immigration agencies. According to The International Cooperation Group (2004), Britain’s child immigration agencies sent “over 95,000” juveniles between 1873 and 1903 (p. 2). Between the children orphaned from death and the military and sent as slaves, Canada’s juveniles were bound to be neglected and abused on the streets of Canada.
Many of the early crimes in Canada seemed to be due to the neglect of juveniles. The International Cooperation Group (2004) notes that many of the early juvenile crimes consisted of: brawling, swearing, abortions, drunkenness, vagrancy, petty theft, fur trade and leaving indentured service contracts (p. 2-3). While these crimes were those of the majority, Canada’s early juveniles also committed more serious crimes – murder – during the eighteenth and nineteenth centuries (The International Cooperation Group, 2004, p. 2-3). Canada’s early juvenile delinquents were not afforded the opportunity to be helped by “the system.” Instead, the system punished the juveniles for their crimes. Punishments in early Canada ranged from being whipped or incarcerated on to public ridicule and execution (The International Cooperation Group, 2004, p. 3-4). However, some areas of early Canada followed the Age of Enlightenment by starting juvenile reformation as early as 1816 (The International Cooperation Group, 2004, p. 8).
Nova Scotia introduced the Act of Nova Scotia Legislature in 1816. This 1816 Act stopped the incarceration of juveniles for minor criminal infractions as it was believed jail time “was a useless expense” (The International Cooperation Group, 2004, p. 8). Charles Duncombe was what some might call “the savior” for Canada’s delinquent juveniles. According to The International Cooperation Group (2004), Duncombe believed that the juvenile delinquents were a product of impoverished families and needed to look to the law as “father” figures and for reform instead of punishment (p. 9-10). Even though there were early advocates, like Duncombe, who believed children had special needs, it was not until the middle of the nineteenth century that society as a whole viewed juveniles as children needing reformation, not complete punishment (The International Cooperation Group, 2004, p. 9-11). For instance, Halifax Protestant Industrial School opened in 1864 in Nova Scotia. According to The International Cooperation Group (2004), Halifax’s main purposes including educating and homing the homeless juveniles to prevent crime, not punish it (p. 13).
In 1891, Ontario investigated the prison systems in Canada and United States. As Halifax promoted, Ontario’s study brought about a “national impact.” which brought society to focus on the well-being of juveniles all the while preventing juvenile delinquency (The International Group, 2004, p. 15-16). The International Cooperation Group (2004) noted 16 of the 48 recommendations from the Ontario Commission:
· every city and large town should have one or more industrial school
· children under 14 should not be publicly arrested and detained
· children under 14, when it is necessary to hold them, should not be de-tained in a common jail but in a place entirely away from the police station
· all children under 14 should be tried in special courts
· convicted children under 14 should never be incarcerated in a common jail, and should be sent to a reformatory or refuge only as a last resort
· more use should be made of suspended sentences
· a probation system should be introduced
· earned remission for good conduct should be offered
· a parole system should be adopted, as well as apprenticeship programs and boarding out
· an association should be formed in every region of the province for the after-care of released juveniles
· changes in the law should give more power to provincial officials over such things as pardon, parole and the general supervision of delinquent children. (p. 16).
The year 1894 finally brought about some solid change for juvenile delinquents in Canada according to the Ontario Commission recommendations above. The Act respecting Arrest, Trial and Imprisonment of Youthful Offenders of 1894 stressed the new role of social agencies in connection with juvenile delinquents (The International Cooperation Group, 2004, p. 18-19). Not only did the 1894 Act bring about the requirement of magistrates analyzing a juvenile delinquent’s past to point the juvenile in the correct direction of reformation, but also the Act required that an officer of society be notified to investigate the crime in order to work and offer advice on behalf of the delinquent (The International Cooperation Group, 2004, p. 18-19).
In 1908, Canada’s first official “juvenile” statute was written – Juvenile Delinquents Act. According to The International Cooperation Group (1904), this 1908 Act established law in which to look at juveniles from a social welfare concept instead of “judicial process” (p. 21). Additionally, the Juvenile Delinquents Act stated, “"every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child" (qtd. in The International Cooperation Group, 2004, p. 21). Due to Canada not equalizing the treatment of juveniles across the country, The Young Offenders Act of 1970 was initiated (The International Cooperation Group, 2004, p. 22-23). However, as with the recommendations of 1975, action was not taken on behalf of juveniles until 1984.
The Canadian Charter of Rights and Freedoms became part of Canada’s Constitution in 1982. This constitutional amendment mandated the significance of life and liberty of Canadian residents (The International Cooperation Group, 2004, p. 24). From this Constitutional amendment came the Young Offenders Act of 1984, which “remed[ied] shortcomings in the treatment of juvenile delinquents” and, most importantly, their rights (The International Cooperation Group, 2004, p. 24). While this 1984 Act stressed the importance of juveniles being held accountable for their actions, the Act also raised the minimum age of prosecution to 12 years old (The International Cooperation Group, 2004, p. 24). According to The International Cooperation Group (2004), the 1984 Act prohibited juvenile jail time in excess of two years, unless the crime was punishable by life sentence (p. 25). While the 1984 Act brought about positive due process for juveniles, 1997 brought recommendations to further prevent and treat juvenile criminals with meaningful treatment and rehabilitation (The International Cooperation Group, 2004, p. 25-26).
Canada’s government attempted to change the 1984 juvenile act in 1999. However, it was not until April 1, 2003 that the new Youth Criminal Justice Act was enforced (The International Cooperation Group, 2004, p. 26). According to the International Cooperation Group (2004), the purposes of the 2003 Youth Criminal Justice Act were to “use the formal justice system more selectively, reduce the overreliance on incarceration and increase reintegration of young people into the community following custody” (p. 27). The 2003 Act specifically addresses what needs to be looked at when considering imprisonment for a juvenile, both those treated as youth and those treated as adults, and issues such as custody and “extrajudicial measures” (The International Cooperation Group, 2004, p. 27). Even though Canada has come a long way in its treatment of juvenile delinquents, The International Cooperation Groups (2004) wrote, “As a part of Canada's A Strategy for the Renewal of Youth Justice, the Youth Criminal Justice Act seeks to provide the legislative direction needed to achieve a more effective and fairer youth justice regime” as Canada’s juvenile justice system still needs improvements (p. 28).
Part III: South Africa
Juveniles’ rights in South Africa were not specifically looked at until 1994 (Minister for Justice and Constitutional Development, 2002, p. 2). Real reform for juvenile delinquents’ rights remained to be unseen until the late 1980s - early 1990s. More specifically, South Africa “ratified the United Nations Convention on the Rights of the Child” on June 16, 1995 (South African Law Commission, 2000, p. 2). According to the South African Law Commission’s (2000) quote, the ratification specifically stated:
State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law, to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. (p. 2-3).
In addition, the 1995 ratification brought forth a constitutional ratification in the Republic of South Africa’s Constitution. The South African Law Commission quotes (2000) this ratification as “every child having the right”:
not to be detained except as a measure of last resort, in which case, in addition to the rights the child enjoys under section 12 and 35, the child may be detained only for the shortest possible appropriate period of time, and has the right to be (i) kept separately from detained persons over the age of 18 years, and (ii) treated in a manner, and kept in conditions, that take account of the child's age. (p. 5-6).
The stated requirements above were an immediate effort to allow South African juveniles to maintain certain rights as held by adults. While South Africa seemed to take quick steps in protecting juvenile delinquents, the South African Law Commission was still called on to review the juvenile system.
South Africa’s Child Justice Bill only passed through the National Assembly on June 25, 2008. The South African Law Commission introduced the original changes to the United Nations ratification of 1995 in 2000 that the Ministry of Justice and Constitutional Development proposed in the Child Justice Bill. It has taken eight years to move the bill this far through South Africa’s legislative process. Based on these facts, the Child Justice Bill’s objectives will be briefly analyzed.
First and foremost, South Africa’s Law Commission sought to change where juveniles were tried. Instead of being tried in adult courts, juveniles would be “diverted” to appropriate “child justice systems” as equal to the “values” set forth in South Africa’s Constitution (Ministry of Justice and Constitutional Development, 2002, p. 3). Next, the Ministry of Justice and Constitutional Development, 2002, proposed to hold juveniles accountable for their actions, but at the same time, enforce the concept of restorative justice and prevention of juvenile offending or re-offending (p. 3). The Ministry of Justice and Constitutional Development also took into account the rights of victims and while attempting to balance the needs of children with those needs of society by developing new techniques of dealing with juvenile offenders (2002, p. 3). The Ministry of Justice and Constitutional Development (2002) based the new techniques upon: harsh punishments in the past; the needs of children and long term effects by using less stringent techniques and “South Africa’s obligations as party to international and regional instruments relating to children, with particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child” (p. 3). Finally, the new techniques at dealing with children made specific areas noteworthy during this change. The Ministry of Justice and Constitutional Development (2002) noted the specific terms that would be taken into consideration when dealing with a delinquent juvenile: increased age of child capacity; analyzing the individual needs and situations of each child; child friendly court systems and placement to increase court attendance; specific child courts to take the adult process out of the juvenile system; adjudicating matters that may not heard in juvenile courts and offering various sentencing options based upon the needs of each individual child (p. 3). Sentence options in South Africa will include community based, restorative justice, various fines, correctional supervision, youth care center admission, imprisonment and suspension of sentences (Ministry of Justice and Constitutional Development, 2002, p. 40-43). While it is expected that the Child Justice Bill will pass by the end of 2008, there are no guarantees for the South Africa’s juveniles as there seems to be in other parts of the world.
Part IV: Tasmania, Australia
While Tasmania has criminal codes dating only back until 1924, it was not until 1997 that Tasmania instigated the Youth Justice Act 1997 (Australian Institute of Criminology, 2006). Interestingly enough, Tasmania’s youth have “general principles” given to them that seems to be similar to adult characteristics (Youth Justice Act 1997, 1997, Sec. 5). While juveniles are to be held responsible for their actions, the Youth Justice Act 1997 specifically states, “that the youth is not to be treated more severely than an adult would be” (1997, Sec. 5). In addition, the Youth Justice Act 1997, seems to contradict itself by allowing for the parents and victims to be a part of the juvenile offender’s sentence (1997, Sec. 5). This seems to be contradicting, because the Youth Justice Act 1997 goes on to initiate the concepts of not detaining youth any longer than necessary and “punishing” the youth according to age, maturity level and cultural identity (1997, Sec. 5). While Tasmania looks at specifics of the youth and tries to steer free of detention, the statute seems to treat juvenile offenders equal to that of adult offenders.
The Youth Justice Act 1997’s specific objectives seem to be focused on the youth’s family, cultural identity and “dealing with” the youth (1997, Sec. 4). For instance, the role of families, guardians and communities are specifically stated under the Youth Justice Act 1997 (1997), but it does not state the specific objectives of the juvenile justice system:
to enhance and reinforce the roles of guardians, families and communities in –
(i) minimising the incidence of youth crime; and
(ii) punishing and managing youths who have committed offences; and
(iii) rehabilitating youths who have committed offences and directing them towards the
goal of becoming responsible citizens. (Sec. 4).
The Youth Justice Act 1997 allows for police officers or courts to basically “assign” whatever age they feel is appropriate to a youth – if contrary evidence is not shown (1997, Sec. 6). In addition, if a youths’ age is determined to be different, the court “may” transfer the youth to a different court, with it not being “mandatory” (Youth Justice Act 1997, 1997, Sec. 6).
Unlike the United States juvenile system, Tasmania officers have the discretion to simply “explain,” or non formally give “caution, to juvenile offenders about the crime committed (Youth Justice Act 1997, 1997, Sec. 8). However, the officer may also send the issue to the Secretary for a community conference or on to the court of fine, or formally caution, the youth a certain amount based upon the crime (Youth Justice Act 1997, 1997, Sec. 9 - 10). In addition, if youth agree to the requirements set forth by the police officer, the youth “is not liable to be prosecuted” for the crime (Youth Justice Act 1997, 1997, Sec. 10). Community conferences may be initiated for youth who are not in agreement with the officer’s orders and must include the youth, guardians, Commissioner of Police, charging officer and various facilitators (Youth Justice Act 1997, 1997, Sec. 15). According to the Youth Justice Act 1997 (1997), a community conference may result in various “undertakings” that cannot exceed 12 months but may include an apology, fines and community service (Sec. 17). Even though this seems to be a good process in dealing with juvenile offenders, not all juvenile offenders are able to go without being arrested.
When a Tasmania officer believes that the offense warrants an arrest, the officer may arrest the juvenile offender. An officer may chose to arrest if he believes the offender will commit another crime, destroy evidence, skip out on court or is under a restraint order (Youth Justice Act 1997, 1997, Sec. 24). If arrested, not all juveniles are afforded the opportunity for bail. Instead of detaining the juvenile in a juvenile facility, Tasmania officials incarcerate juveniles in watch houses or prisons with adult inmates with the precautions set forth not to mix the youth with adults (Youth Justice Act 1997, 1997, Sec. 25). In fact, the Youth Justice Act 1997 (1997) allows juveniles aged 15 or older to be tried in the same court as the adult if there is an adult also being charged (Sec. 27). While Tasmania courts have the option to detain guilty youth as a last resort, the courts can also impose the following sanctions first: fines, probation, community service and undertakings for good behavior (Youth Justice Act 1997, 1997, Secs. 6 & 8-11).
Part V: Conclusion
Canada has demonstrated a long line of attempt at juvenile offender reformation. Even then, the system has its troubles. South Africa more recently attempted to divert its juveniles in ways similar to that of the United States and Canada. However, Tasmania continues to be one of the countries that imprison juveniles with adults, which may only lead to re-offending once the juvenile is released. Tasmania does not seem to be real clear on any specific age limits of the juvenile nor does it seem to depend upon a real “process” like approach to juveniles. Much of Tasmania’s juvenile authority is left up to officers without involving a person or organization on behalf of child welfare. The Juvenile Justice Panel (2006) believes that “most governments are failing in their obligations under international human rights instruments” as quoted from the UNCRC:
in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. (p. 2)
Until other countries around the world, like Tasmania, can follow the examples of other child welfare centered systems, juveniles will continue to be neglected and abused within their systems.
References:
Australian Institute of Criminology (2006). Young people and crime: Major Legislation. Retrieved June 27, 2008 from Australian Government, Web site: http://www.aic.gov.au/research/jjustice/legislation.html
Detrick, S., Abel, G., Berger, M., Delon, A., & Meek, R. (2008). Violence against children in conflict with the law. Retrieved July 1, 2008 from , Web site: http://www.dei-france.org/documentsDEI/2008/Report%20DEI%202008.pdf
The International Cooperation Group (2004). The evolution of juvenile justice in Canada. Retrieved June 23, 2008 from Department of Justice Canada, Web site: http://www.justice.gc.ca/eng/pi/icg-gci/jj2-jm2/jj2-jm2.pdf
Juvenile Justice Panal (2006). More about need for protection. Retrieved July 1, 2008 from Juvenile Justice Panal, Web site: http://www.juvenilejusticepanel.org/resource/items/ M/o/MoreAboutNeedForProtection.pdf
Minister for Justice and Constitutional Development. (2002) Republic of South Africa: Child justice bill. Retrieved June 28, 2008 from Child Justice Alliance, Web site: http://www.childjustice.org.za/downloads/b49b-2002.pdf
South African Law Commission (July 2000). Project 106: Juvenile justice report. Retrieved June 28, 2008 from The South African Law Commission, Web site: http://www.doj.gov.za/salrc/reports/r_prj106_juvjus_2000%20jul.pdf
Youth Justice Act 1997. (1997). Retrieved June 27, 2008, from Australian Government, Web site: http://www.aic.gov.au/research/jjustice/legislation.html
© Beardsley, 2008 |
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