I. Introduction
When Parliament enacted the Youth Criminal Justice Act (YCJA)Footnote 1 in 2003, two main objectives were to reduce variability in the treatment of youth in different regions of the country and decrease the use of custody for young offenders.Footnote 2 Under the YCJA’s predecessor, the Young Offenders Act (YOA),Footnote 3 Canada was sentencing youth to custody at nearly twice the rate of the United States, despite the United States having much more serious crime than Canada.Footnote 4 The majority of youth who were serving custodial sentences under the YOA had committed minor offences.Footnote 5 At the same time, there was variability in the implementation and interpretation of the YOA between provinces—where youth in some regions received harsher penalties for committing the same crimes.Footnote 6
Over twenty years later, the YCJA has had mixed success in achieving these goals. The YCJA’s greatest success is that the number of youths sentenced to custody has been reduced dramatically. Without any increase in youth crime rates or severity, the number of youths in detention has decreased by 77 percent and custodial sentences have decreased by an astounding 95 percent.Footnote 7 This victory is dampened somewhat when seeing that these gains were only experienced by non-Indigenous youth. While Indigenous youth made up only 14.4 percent of admissions to custody in 1997/98, they made up 52 percent of admissions to custody in 2020/21—an increase of 261 percent.Footnote 8 Overrepresentation is equally pronounced in admissions to pretrial detention, with Indigenous youth accounting for 51 percent (female) and 43 percent (male) of admissions in 2022/23.Footnote 9 These statistics suggest that the YCJA’s success at reducing rates of custody is experienced selectively by non-Indigenous youth.
Signifying some success in the YCJA’s goal to reduce variability in sentencing between provinces, all regions have seen decreases in the use of custody as well as increases in extra judicial measures.Footnote 10 However, youth living in rural and remote areas receive different services under the YCJA and there remains a great deal of interprovincial variability in rates of Indigenous youth admissions to corrections.Footnote 11 One study finds Indigenous youth in the western provinces are admitted to corrections at much higher rates than those in the Maritimes.Footnote 12 So, while the YCJA has been a success in many ways, its two main objectives of increasing uniformity and reducing rates of custody—at least for Indigenous youth—have not been realized.
That the YCJA has been only partially successful in its main objectives may be attributable to the limits of legislation in fixing serious social issues, implementation or drafting. The YCJA is, after all, just a statute and even the Supreme Court of Canada has remarked that legislation alone is unlikely to fix the ongoing intergenerational trauma rooted in the country’s deeper history of colonialism, the residential school system, the sixties scoop and government policies aimed at the cultural alienation of Indigenous peoples of Canada.Footnote 13 It is equally possible that the selective success of the YCJA can be attributed to issues in its implementation. Criminologists have identified several potential factors that help to explain rates of Indigenous youth in the criminal legal system, including police stops, disparate offending rates, higher risk profiles, inadequate correctional programming and discriminatory justice-system practices.Footnote 14 In this paper, we focus on the other important, but underexplored, aspect of the issue: legislative drafting.
We suggest that the way the YCJA has been drafted may be a part of the problem of being less effective at its twin goals of reducing Indigenous youth admissions to custody and interprovincial variation in sentencing. In Part I, we introduce the rules and standards debate and describe how sentencing youth in Canada moved along the spectrum from being standards-based to a more rules-based instrument. With this shift, the assumption was that judges’ sentencing practices would be more uniform and that the issue of Indigenous youth mass incarceration would be addressed by increasing the specificity of the law. Though some scholars attribute the YCJA’s success in reducing the use of custody for youth to the increase in specificity in its drafting,Footnote 15 in Part II, we use the sentencing of Indigenous youth as a case study to argue that the repetition and competing goals of sentencing provisions in the YCJA generate problems typical of overcriminalization by over depth: a statute that is both over- and under-inclusive, arbitrariness and confusion in the implementation of a specific legislative mandate. In Part III, we provide specific ways in which the YCJA may be streamlined to reduce the over depth that may increase uniformity in sentencing practices by judges and point to solutions beyond legislation that may be key to ensuring the YCJA ultimately succeeds in its endeavour.
II. Sentencing youth in Canada: a shift from standards to rules
The proliferation of sentencing rules now apparent in the YCJA is an evolution from standards-based regulation to a more rules-based approach to governing judges’ discretion. In this part, we first provide a summary of debates on the benefits and drawbacks of rules-based and standard-based regulation. We then trace the history of the youth justice scheme in Canada as a case study of an evolution from standards to a more rule-based governance and the impact this has had on the YCJA’s main goals of interprovincial uniformity and reducing the rate of Indigenous youth in custody.
1. Rules and standards in legislative drafting
There is an extensive body of academic work on the question of whether it is better to draft legislation as “rules” or as “standards.”Footnote 16 Rules are “legal directives that define the content of the law ex ante through prescription of concrete empirical triggers that dictate determinate responses.”Footnote 17 Rules are composed of a factual predicate—a consequent and a justification: if you do X, then Y, because of Z.Footnote 18 The factual predicate defines the scope of the rule—the facts that must exist for the rule to be triggered.Footnote 19 When the factual predicate is satisfied, the consequent describes the consequence the rule imposes and the justification is the purpose that the rule was meant to advance.Footnote 20
An example of a rule is the mandatory minimum sentence for first-degree murder: if a person is convicted of first-degree murder (factual predicate), then they will be sentenced to life in prison (consequence).Footnote 21 This example illustrates some of the benefits of rules—higher certainty, predictability and an ease in application that should present fewer problems of proof.Footnote 22 Rules provide notice to all legal subjects of the types of behaviours that trigger specific consequencesFootnote 23 and are therefore believed to prevent arbitrariness and promote uniformity.Footnote 24 With a mandatory sentence, there should be uniformity in what judges do when people are convicted of first-degree murder because discretion is all but removed. At the same time, knowing what the sentence for murder will be when convicted gives notice to potential murderers what the consequence would be for their crime should they be convicted.
Whereas rules contain empirical triggers for a consequence, standards employ evaluative criteria such as reasonableness, good faith or due care.Footnote 25 An example of a standard found in a former version of the YCJA and current family-law legislation is that any measure taken be “in the best interests of the child.”Footnote 26 What constitutes the “best interests of the child” is not known in advance to guardians, but determined after a contextual exploration of various factors by a judge. In this way, standards-based instruments leave the determination of a directive’s content to the applier of the standard after the event at issue occurs and are therefore thought to give more discretion to the decision-maker.Footnote 27
While rules are criticized as being both over- and under-inclusive of the goals they are meant to achieve,Footnote 28 standards are believed to be more flexible, permitting a contextual analysis of behaviours to determine the most appropriate outcome. As Richard Posner explained: “a rule singles out one or a few facts and makes it or them conclusive of legal liability; a standard permits consideration of all or at least most facts that are relevant to the standard’s rationale.”Footnote 29 Some argue that standards are more efficient than rules—that, in permitting the case-specific tailoring of enforcement and remedy, standards safeguard against the wasteful application of unneeded consequents.Footnote 30 A common example against this wasteful application of unneeded consequents is mandatory minimum sentences, which are taken to be wasteful given the high costs to individuals and society, particularly when applied to less severe offences.Footnote 31
Despite these advantages, standards have their own drawbacks. With increasing discretion comes the risk of inconsistent outcomes, as judges may incorporate factors that other courts would consider irrelevant and issue decisions that deviate from a doctrine’s intended application.Footnote 32 Being more manipulatable, standards also introduce unpredictability into judicial decision-making that some argue undermines the uniformity and reliability of legal outcomes.Footnote 33 So, while standards offer flexibility, they do so at the cost of certainty.
Rules and standards exist at opposite ends of the continuum representing possible forms of a legal directive, with rules minimizing the discretion of the decision-maker by attaching determinate legal consequences to a definite set of facts and standards that involve a more qualitative appraisal on the part of the decision-maker.Footnote 34 Along this continuum, there is legislation that guides decision-makers without limiting discretion in absolute terms in the ways that rules do, such as principles.Footnote 35 A principle guides discretion by describing result that ought to be achieved, as well as the reasons for why that result should be achieved.Footnote 36
Though the common practice in the debates of which is better refers to rules and standards in their purest forms, legal instruments are usually made by mixing the two to varying degrees.Footnote 37 For example, in the context of family law, an order must be made in the “best interests of the child,” but the Family Law Act goes on to list various considerations that will assist in the determination of this standard, such as the child’s health and emotional well-being, the child’s views, and the nature and strength of the relationships between the child and significant persons in the child’s life.Footnote 38 These hybrid rules are made up of a standard with mandatory considerations for a judge that limit discretion somewhat, but not as significantly as do rules in their purest form.
Though sentencing has been classified as an area that is rules-based,Footnote 39 in the next part, when we trace developments in youth justice legislation, we conclude that the YCJA’s sentencing scheme moved from standards-based to a more rules-based scheme, primarily by providing guided discretion in its principles. The importance of this classification for our overall argument is that the inclusion of these principles, along with a mix of standards and rules in the sentencing provisions of the YCJA, diluted the intended effect of reducing judicial discretion in sentencing to produce more uniform outcomes for both Indigenous and non-Indigenous youth.
2. YCJA as an evolution from standards-based to rules-based sentencing
The history of youth sentencing in Canada represents a shift from a standards-based to a more rule-like approach to sentencing.Footnote 40 In 1908, Canada’s first youth justice statute, the Juvenile Delinquents Act (JDA), included but one standards-based direction for judges sentencing youth: that any measure taken be in the best interests of the child.Footnote 41 With just one standard to guide their decisions, judges had the maximum amount of discretion, leading critics of the JDA to note that it was often applied in an arbitrary and discriminatory fashion.Footnote 42 For instance, Sherrie Barnhorst noted paternalistic trends in the administration of the JDA, finding girls to be convicted in larger numbers on the basis of the vaguely worded offences of “immorality” and “incorrigibility.”Footnote 43 The arbitrariness in its application reflects a common critique of standards-based regulation—that it can result in biased decision-making and variability in its application.
From the late 1960s until the 1980s, there were issues with the JDA, including the informality of the procedures and lack of legal rights for youths; wide variability in regional and judicial decisions; and the effectiveness of training schools in rehabilitating youth.Footnote 44 Parliament overcorrected the standards-based JDA with a new youth justice scheme in 1984—the YOA, which emphasized rules and principles.Footnote 45 Sentencing discretion was guided by the YOA’s Declaration of Principle, which provided ten overarching directives ranging from crime prevention to supervision and rehabilitation.Footnote 46 Also, the YOA incorporated more rules in its legislation by abolishing indeterminate custodial sentences and replacing them with fixed custodial dispositions, such as a maximum sentence for the most violent young offenders.Footnote 47 Both of these reforms represent a shift from the more discretionary interpretation of the “best interests of the child” that was found in the JDA towards a system of more finite outcomes and guided decision-making that underscores rule-based instruments.
After the YOA’s inception, police charging and reporting practices changed, leading to increased police reports of youth crime throughout the 1980s and early 1990s.Footnote 48 The legislative response was to add rules to the YOA that created a presumption that sixteen- to seventeen-year-old youth committing serious offences would be transferred to adult courts and adding that the “long term protection of society” became a paramount concern in a youth transfer to adult court.Footnote 49 At around the same time, Parliament also sought to restrict the use of custody by amending the YOA to restrict the use of open custody and closed custody.Footnote 50 Each of these changes removed some discretion from youth court judges but, as it turns out, did not make sentencing practices more uniform, and actually resulted in an increase in custodial dispositions.Footnote 51
In addition to reporting changes under the YOA, youth crime rates increased through the 1990s, resulting in greater numbers of youth custodial sentences than ever before—with nearly three-quarters of youth receiving custodial sentences for non-violent crimes.Footnote 52 Canada was incarcerating youth at a rate of four times that of adults and twice that of many US states.Footnote 53 In response, the federal government amended the YOA by adding s 24(1.1), which states that, in determining whether or not to commit a young person to custody, the court shall take into account a number of factors: that custody is not a replacement for child welfare or social services; that a young person who commits an offence that does not involve serious personal injury should be held accountable through non-custodial sentences; and that custody shall only be used when all available alternatives that are reasonable in the circumstances have been considered.Footnote 54 Detailing specific considerations for judges did not have the intended effect, in part because the discretionary language used in the YOA allowed some judges to engage in “creative interpretations” and impose custodial sentences. Language such as “whenever appropriate” and “reasonable in the circumstances” that was embedded in the restrictions to sentences provided pockets of unfettered discretion to judges.Footnote 55
At the same time, Parliament began a lengthy process of consultations with the provinces on youth justice reform, which culminated in the YCJA.Footnote 56 At twice the length of the YOA,Footnote 57 the YCJA launched a series of rules, standards and principles aimed at increasing uniformity in youth justice dispositions and reducing the reliance on custody.Footnote 58 The statute was lauded by academics at the time for providing stronger and clearer legislative direction to judges to use restraint in sentencing.Footnote 59
Structurally, the YCJA opens with a preamble and declaration of principle that contain a number of objectives for the statute and the reasons why they should be achieved—a legislative directive that Hart and Sacks would classify along the standards-to-rules continuum as “principles.”Footnote 60 Decisions by police, prosecutors and judges should be made in a way that aligns with these principles, but decision-makers still retain a great degree of discretion. The YCJA introduced more principles for decision-makers to keep in mind than did its previous iterations. For instance, the YOA contained ten principles that applied to all decision-making in youth justice, including sentencing.Footnote 61 The YCJA extended the number of considerations by including directions for decision-makers in its preamble, again in its Statement of Principle and then in other places throughout the Act, including specific pretrial detentionFootnote 62 and sentencing provisions.Footnote 63
The YCJA then introduces subject-specific rules to guide pretrial detention and sentencing. Pretrial detention could only be ordered in limited circumstancesFootnote 64 and could not be used as a substitute for health or social welfare services.Footnote 65 Sentencing disparities between the provinces were meant to disappear when the YCJA’s detailed scheme set out rules to define which crimes were the most serious,Footnote 66 when custody was appropriateFootnote 67 and how long a sentence would be split between a custodial and non-custodial measure.Footnote 68 Section 39 of the YCJA specified that custody was meant to be a last resortFootnote 69 and restricted the availability of custody to four specific situations: when a youth committed a violent offence; when a youth failed to comply with non-custodial sentences; in exceptional circumstances, when a youth committed an indictable act punishable by more than two years imprisonment in the adult context and has a history of findings of guilt in the youth context; or when a youth commits an indictable offence in which aggravated circumstances are such that the imposition of a non-custodial sentence would be inconsistent with the principles of sentencing set out in the YCJA.Footnote 70 Thus, this section instructs judges to consider YCJA principles in order to follow these rules.
The overrepresentation of Indigenous youth in custody was meant to be addressed by a specific provision directing sentencing judges to consider all alternatives to custody for a youth, especially Indigenous youth.Footnote 71 These extra considerations for judges shape discretion without dictating a result, making them a hybrid between rules and standards.Footnote 72 We argue that these open-weave rules act as principles that manage judicial discretion, with sufficient variability in the factual predicates that the consequent is not fixed in the way it is with rules.
The YCJA’s sentencing provisions were characterized as the “most systematic attempt in Canadian history to structure judicial decision making in the sentencing of juveniles” and “the most detailed sentencing guidelines short of numerical guideline systems, such as those found in other jurisdictions in the United States.”Footnote 73 Moving from the vague standards of the JDA to principles and rules in the YOA, sentencing practices became increasingly harsh, particularly for Indigenous youth. By adding even more discretionary principles in the YCJA, Parliament sought to address the perceived shortcomings in youth justice at the time: that judges in different regions were treating young offenders differently and relied too frequently on custody. At the same time, the YCJA’s shift towards more rules-based regulation resulted in an increase in the size and detail included in the legislation, which, we argue in the next part, did not effectively address variability in sentencing practices and overrepresentation in custodial sentences for Indigenous youth.
3. More law … more justice?
Canadian sentencing scholars have been generally supportive of this move from standards to more structured rule-like provisions in the YCJA. Richard Barnhorst—one of the Department of Justice Lawyers who worked on developing the YCJA—points to provisions in the YCJA that reduce judicial discretion (such as mandatory principles of sentencing and restrictions on the use of custody) in explaining some of the YCJA’s major successes, such as reducing the overall rate of youth serving custodial sentences.Footnote 74 Several scholars suggest that increased guidance and structure to sentencing discretion may be a way to increase uniformity and also reduce Indigenous representation in corrections.Footnote 75 For instance, Alison Aho suggests that, without clear guidelines, problematic discretionary practices persist whereby the legislation “gives courts the opportunity to simply acknowledge that they have considered the needs of the Indigenous accused without providing much more by way of explanation.”Footnote 76
On the other hand, the sheer volume of rules and principles contained in the YCJA led others to believe that it was “extremely complicated”Footnote 77 and that “the interpretation of its principles and provisions will doubtless constitute a challenge for youth court judges and appellate courts for years to come.”Footnote 78 Some considered the YCJA to be “far too complicated with its extensive sections and subsections and with its mixture of contradictory youth justice models and principles.”Footnote 79 Indeed, research in the United States finds that racial disparities in sentences are less pronounced when sentencing courts have greater discretion in crafting a sentence.Footnote 80
In the next part, we suggest that the move towards layers of principles throughout the YCJA, as well as the specific rules-based sentencing guidelines, increased the sheer number of considerations that governed the same behaviour: judges’ decision-making at sentencing. We conceptualize the overlapping directions for judges to follow as a novel application of overcriminalization by over depth and suggest that it contributes to the YCJA’s failure to meet its initial aims.
III. Sentencing in the YCJA: overcriminalization by over depth
Overcriminalization is a term used to describe the proliferation of statutes that criminalize behaviours.Footnote 81 Traditionally, overcriminalization by over depth occurs when overlapping offences govern the same conduct, so prosecutors can choose to criminalize the same behaviour in a number of different ways, with disparate consequences, depending on what a person is charged with.Footnote 82 For example, if a driver causes the death of one of their passengers in a car accident, then that behaviour could be charged under provincial motor vehicle regulationsFootnote 83 or under the Criminal Code as murder, manslaughter or criminal negligence causing death or the dangerous operation of a conveyance causing death.Footnote 84 Douglas Husak explains that the harm of overcriminalization by over depth is that it can lead to inconsistent and increased penalties, and the concentration of discretion in the hands of prosecutors.Footnote 85
The discretionary issue that over depth presents—where prosecutors can choose to criminalize the same behaviours in different ways—is equally present when a statute provides a multiplicity of sentencing principles for judges to consider. That the proliferation of considerations at sentencing is a form of overcriminalization is a novel argument,Footnote 86 but one that is supported by studies that find judges in different provinces emphasizing different principles and purposes of sentencing, which results in disparate sentencing practices between provinces.Footnote 87 For example, Roach’s analysis of appellate decisions finds that British Columbia and Saskatchewan tended to prioritize the principles of denunciation and deterrence over other considerations when sentencing Indigenous adults for serious crimes, whereas Ontario appellate courts did not adopt this approach.Footnote 88 Having multiple principles to choose from allows appellate courts in different provinces to prioritize different purposes and principles in crafting a sentence. The sentencing provisions in the YCJA are even more voluminous than those in the Criminal Code, which would, arguably, muddy the water even more for youth courts. For example, the principles of accountability and proportionality are mentioned six times in different parts of the YCJA.Footnote 89 ReparationFootnote 90 and rehabilitationFootnote 91 are each mentioned four times in different parts of the YCJA.
The parallel we draw with conventional overcriminalization scholarship is that these overlapping considerations in sentencing present the same amplification of discretion that prosecutors exercise when they charge people with offences. Just as prosecutors can choose to charge someone who commits the same act with multiple overlapping provisions, judges can choose which sentencing principles become most important in justifying an outcome. In the next part, we reinforce the characterization of the YCJA sentencing provisions as overcriminalization by over depth by introducing the problems of overcriminalization by over depth that have been identified in the literature to date and demonstrating how the YCJA illustrates those same problems. In this way, overcriminalization by over depth may be partly to blame for the YCJA’s failure to achieve its objectives of uniformity and reduced use of custody for Indigenous youth.
1. Problems associated with over depth
The YCJA’s sentencing reforms show symptoms of overcriminalization. In increasing the specificity of the factors that judges could consider in sentencing, the legislature has introduced problems related to over depth by including statutes that are both over- and under-inclusive, arbitrariness and confusion in the implementation of a specific legislative mandate. Instead of increasing uniformity, the proliferation of rules relating to youth sentencing exacerbates differences between the provinces.
1.1. Less discretion means sentences are both over- and under-inclusive
A problem with over depth in the sentencing context is that increased specificity potentially removes a judge’s ability to craft a sentence fit to an offender. A familiar critique of any legal distinction based on identity categorizations—such as the YCJA sentencing provisions that signal judges should consider the Indigenous status of a youthFootnote 92—is that they are both over- and under-inclusive. Such provisions are overinclusive because they assume unity within that category, ignoring complex and intersecting forms of oppression. Charlotte Baigent, advocating for an intersectional lens in sentencing Indigenous women, writes: “privileging Indigeneity over all other relevant factors such as sex, gender, class, and disability paints a distorted picture of the context in which a particular Indigenous woman committed an offence.”Footnote 93 In this way, Indigenous status as a marker for special considerations in sentencing is under-inclusive of people who experience other sources of systemic disadvantage. Singling out Indigenous youth fails to include characteristics such as poverty, which may equally provide the context and reduced moral blameworthiness for the commission of the offence.Footnote 94 At the same time, it may include Indigenous people who experience different levels of systemic discrimination, including little to no systemic discrimination.
In terms of the ways in which precedent limits judges’ ability to fix an appropriate sentence for a youth, the leading case on sentencing Indigenous offenders—R v Gladue—lists low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation as factors that are relevant in sentencing.Footnote 95 Scholars have since noted that courts applying the Gladue framework have adhered to this list of factors and as a result have failed to accept other systemic factors that result in reduced moral blameworthiness, such as a history of physical and sexual abuse, intimate-partner violence, single motherhood, fear of state agencies that frequently remove Indigenous children from their mothers and the effects of power imbalances between Indigenous women and men within their communities.Footnote 96
In this way, having factors dictated to judges results in a law that is both over- and under-inclusive. Many of the factors listed in the YCJA for sentencing may not be relevant to an individual youth but are nonetheless part of a sentencing decision because a judge is directed to take them into account. Other factors may be relevant—such as poverty or family violence—but, without being explicitly mentioned in the long list provided in the YCJA, they are not taken into consideration by a sentencing judge.
1.2. Arbitrariness
Just as early critiques of the JDA suggested it was applied differently based on gender,Footnote 97 it is possible that the proliferation of considerations for judges in sentencing is leading to arbitrariness in the application of the YCJA based on race. For Indigenous youth, in addition to all the other relevant purposes and principles in the YCJA, one instructs judges that “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons.”Footnote 98 When judges apply this provision, R v Gladue requires them take into account systemic factors that operate to reduce the moral blameworthiness of an accused.Footnote 99
The Gladue factors include individual issues—such as a lack of employment, low education and substance abuse—that can easily translate to a risk of recidivism that should increase the severity of a given sentence.
There is comorbidity between these systemic factors that, when factored into sentencing decisions, are intended to be remedial and risk factors that aggravate a sentence.Footnote 100 One example is R v K (TD), in which a seventeen-year-old Métis girl was convicted of manslaughter.Footnote 101 The risk-assessment tool in that case deemed K be at a very high risk of reoffending given her social patterns and companions (which included involvement with a gang comprised of other Indigenous youth), family/marital situation (which included abusive relationships) and her low education and unemployment.Footnote 102 Similarly, in R v Nepinak, Pollack P.C.J. mentioned how consideration of Gladue factors is similar to assessing risk factors: “A cynic might say that the application of [risk-assessment tools] to Indigenous offenders in Manitoba means that offenders with prominent Gladue factors will inevitably be classified in a higher risk category.”Footnote 103 Both K(TD) and Nepinak show how making judges consider systemic factors can highlight risk factors that would aggravate a youth sentence.
The proliferation of direction in sentencing Indigenous youth may lead to the YCJA being applied differently in relation to Indigenous youth because, in considering systemic factors as required by the Gladue framework (which reduce moral blameworthiness), judges conflate these with risk or aggravating factors. Nate Jackson suggests that legacies of oppression and systemic racism disproportionately impact Indigenous youth, leading to a host of risk factors for offending, including psychological trauma, family dysfunction, educational deficits and unemployment.Footnote 104 These risk factors are then considered in discretionary decision-making—from an officer’s decision to arrest to the judge’s determination of bail all the way to sentencing—exacerbating disparities for Indigenous youth.
This problem of conflating systemic factors with risk factors is noted in other contexts such as adult sentencing,Footnote 105 bailFootnote 106 and long-term offender designations.Footnote 107 In each of these contexts, the undesirable result is that a law designated to divert Indigenous people from corrections is increasing the severity of the sentences that Indigenous people receive, which may help explain the YCJA’s lack of effectiveness in its goal of reducing the reliance on custody for Indigenous youth in relation to non-Indigenous youth.
1.3. Confusion in implementation
While arbitrariness reduces uniformity because judges can choose to emphasize different considerations, a related issue is that, in the move towards rule-based sentencing in the YCJA, the volume of overlapping provisions governing the judges’ sentencing creates confusion in implementation. Roberts and Bala highlighted this issue in an early article on the YCJA’s sentencing provisions, writing “some principles are mentioned several times, in slightly different ways, and the relationship between certain important and sometimes inconsistent principles is not clearly explained.”Footnote 108 This concern is echoed by judges, such as Gorman J. of the Newfoundland and Labrador Provincial Court in R v DCL: “The [YCJA], like all legislation, requires judicial interpretation. For some legislation this is an easy exercise. For others it is less so. This Act … falls into the latter category as a result of some curious language. It almost appears that its drafters have been purposefully obtuse.”Footnote 109
Overlapping provisions can lead to problems with implementation when considerations conflict with one another. This critique was previously levelled against the YOA’s Statement of Principle for being confusing and incoherent, with some principles being stated so broadly as to be devoid of meaning and others such as deterrence and rehabilitation being inconsistent with one another.Footnote 110 With the YCJA, the problem was not remedied; rather, more considerations were added. As pointed out by Sanjeev Anand over two decades ago: “the problem with including all of these sentencing principles within [the YCJA] is that they are potentially conflicting and inconsistent. Such legislative drafting could result in a lack of any significant structuring of judicial discretion in terms of crafting youth sentences.”Footnote 111
In particular, the YCJA requires judges to consider accountability, denunciation and deterrence—factors that tend to aggravate a sentence—alongside competing principles of rehabilitation, reintegration and the need to recognize reduced moral blameworthiness, which would mitigate a sentence.Footnote 112 Though the drafting of the YCJA suggests that rehabilitation is a secondary consideration to proportionality and accountability,Footnote 113 the problem of over depth remains with these competing provisions because sentencing judges have the choice of which factors to emphasize and which ones to de-emphasize or ignore.Footnote 114
The unintended consequence then becomes that, in providing more principles to guide judges’ discretion, implementation and interpretation vary and less uniformity is achieved.Footnote 115 For example, in R v AS, Campbell P.C.J. listed various tensions created by competing provisions in the YCJA and the challenges they present in implementation:
There are tensions among the principles involved in sentencing a young person. Those tensions make the system difficult to understand at times. There is no checklist or decision tree or logical model. The principles seem, at times, to contradict one another. There are no hard and fast rules as to how much weight should be given to each one or as to how those apparent contradictions are to be reconciled.Footnote 116
Justice Campell systematically goes on to list specific contradictions, such as the tension between short-term and long-term protection of the public, where sending a youth to jail would protect in the short term but may create a more criminally sophisticated offender in the long term.Footnote 117 The need to hold youth accountable may be inconsistent with acknowledging that youth are dependants and products of complex realities of personal and cultural circumstances.Footnote 118 Rehabilitation may be inconsistent with the need to use the least restrictive measures, for instance, by mandating intensive psychological treatments.Footnote 119 Judges are required to consider protection of the public and the seriousness of an offence—which would militate toward a lengthier sentence—at the same time as they must take into account the reduced moral blameworthiness of youth given their background and stage in development.Footnote 120 Campbell P.C.J. closes their analysis of the myriad considerations with a final tension between the “horrific reality of what the young person has done and the hope of what he can be capable of becoming. There is, simply put, a tension between consideration of the at least somewhat known past and the entirely unknown future.”Footnote 121
The tensions listed in R v AS and other youth sentencing decisionsFootnote 122 are documented in academic literature on sentencing in the adult context under the Criminal Code. In the adult sentencing context, scholars have noted that the decolonizing potential of s 718.2(e) of the Code is undercut by denunciation and deterrence, and the need to craft a sentence that is commiserate with the seriousness of an offence; the result is that Indigenous status becomes less important in sentencing serious offences.Footnote 123 In studying the sentencing of Indigenous women who commit crimes in the context of domestic violence, Isabel Grant notes that the aggravating factor of committing an offence in the domestic context is difficult to reconcile with the restorative goals for Indigenous offenders and judges chose which factors to prioritize in different circumstances.Footnote 124 Charlotte Baigent remarks that the conflicting sentencing principles are particularly problematic for Indigenous women, who, often having suffered male violence, are disproportionately criminalized for violent offences and coercively punished for deviating from the gender stereotypes about women.Footnote 125 Together, these studies provide multiple examples of how additional considerations in sentencing—or the movement along the spectrum from standards to rules in sentencing—have the contradictory effect of making sentencing decisions more arbitrary.
2. Over depth and the YCJA
By adding specificity to the discretionary act of sentencing, Parliament had the goal of increasing uniformity in sentencing practices and reducing the use of custody, especially for Indigenous youth. This part suggested that the reason why these goals may not have been achieved may be due to over depth in the drafting of the YCJA: over- and under-inclusiveness, arbitrariness and confusion in the implementation of a specific legislative mandate. The issues of over depth documented here are symptoms of over-regulation more generally—that, in creating more rules, legal systems become more complex and difficult to predict, and develop inconsistencies and unintended consequences.Footnote 126
IV. Room for reform
In this paper, we suggest that one reason why the YCJA has failed to meet its goals of achieving uniformity in sentencing or reducing the proportion of Indigenous youth in corrections is because of the way in which it was drafted. In moving from a standards-based to rules-based sentencing regime, Parliament introduced a form of overcriminalization known as over depth—in which too many principles and rules governing the same behaviour led to the incongruent outcome that the very problems that were meant to be fixed by increased specificity are aggravated.
That sentencing legislation has proliferated in response to the crisis of Indigenous overrepresentation is not surprising, as it is more politically attractive to create a law than to decriminalize.Footnote 127 Indeed, the history of sentencing reform in Canada has included this language—the “crisis” of Indigenous overrepresentation in corrections—as the impetus for the creation of s 718.2(e) of the Code and its later implementation into the sentencing reforms in the YCJA.Footnote 128 One way for politicians to show that they take the issue seriously is to aim reforms at the behaviour that immediately precedes sending an Indigenous youth to prison—the sentencing process. Implicit in these reforms is a staunch belief that the law is an appropriate place to address the colonial harms experienced by Indigenous youth.
One way forward, then, would be to edit the YCJA to remove the repetition and take out the contradictory provisions. The proportion of Indigenous youth in custody was lower relative to non-Indigenous youth under the YOA.Footnote 129 Although all youth were sentenced to custody at higher rates under the previous legislation, these trends might suggest that removing some specificity and overlapping provisions from the YCJA will provide judges with greater freedom to exercise their discretion in a way that meaningfully explores alternatives to custody for youth.
That said, systemic change may be required for more meaningful improvements. Interprovincial variability in youth admissions to corrections may be tied to differences in the resources available to support Indigenous youth in contact with the justice system. The availability of Gladue reports for use in sentencing varies between provinces,Footnote 130 as do the resources available to support alternatives to incarceration for youth.Footnote 131 Increasing funding for youth justice projects, especially those aimed at diverting Indigenous youth in remote areas from corrections, may be one way forward to address the regional variability and high rates of youth correctional admissions.
Another possibility—one that would be more consistent with a restructuring of justice—would be to expand the use of specialized youth courts. In one review of 189 youth sentencing decisions that involved youths who had committed serious offences—manslaughter and breaking and entering—only five of the cases were from Ontario, which provides some evidence that Ontario is successfully diverting Indigenous youth from the court system.Footnote 132 Ontario also has a lower rate of Indigenous youth admissions to corrections, which seems to support that something they are doing is indeed working.Footnote 133 We suspect that the dearth of sentencing decisions from Ontario may be related to the availability of Aboriginal Youth Courts (AYCs). The AYC is a specialized court that is dedicated exclusively to the task of diverting Indigenous youth offenders from the court system into a forum that allows “unique needs to be identified and more effectively addressed by allowing for coordinated involvement of various agencies.”Footnote 134 In a recent evaluation of the AYC, the evaluator found that, of the 390 youth who took part in its processes, only one was sentenced to custody combined with probation.Footnote 135 For the remaining Indigenous youth who took part in the AYC, 229 charges were withdrawn, ninety-one charges were stayed, twenty-six charges resulted in a guilty plea and probation, twenty-four charges were withdrawn with a peace bond and nineteen charges resulted in a guilty plea and conditional discharge.Footnote 136 The AYC’s dedicated process leads to the successful diversion of Indigenous youth from corrections.Footnote 137 If over depth occurs because prosecutors choose which behaviours to criminalize and in what ways, it is important that any changes address not just judicial discretion, but all court actors involved in decisions that affect youth outcomes. AYCs are likely one reason why Ontario has more effectively addressed overrepresentation than other provinces.
These proposed reforms are working within the system that has caused the problem and do not involve the wholesale reimagination of justice that may be more appropriate to decolonize the treatment of youth offenders. A legislative change will not address other root causes of the number of Indigenous youth in corrections, such as disparate offending rates, higher risk profiles or inadequate correctional programming. Without addressing the histories of colonialism and oppression, along with social factors associated with justice-system involvement (e.g., access to and quality of education, employment, poverty), only incomplete solutions to the problem of overrepresentation can be offered. However, larger systemic change begins with smaller improvements. While it is true that any modifications to a statute such as the YCJA may constitute a tweak that leaves the larger issues unaddressed, it may nonetheless be one step towards a restructuring of the system so that it causes less harm.
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