Juvenile Delinquents Act

Under English common law, there were complex distinctions concerning age, criminal intent and the type of crime involved that determined whether an infant (i.e., one under the age of twenty-five)[1] could be convicted.

For common misdemeanors, particularly in cases of omission, punishment was not given to those under the age of twenty-one, except where there was a notorious breach of the peace, in which case those aged fourteen years or more could be convicted.[2] For capital crimes, since the time of Henry III, those under the age of seven could not be convicted, and those between seven and fourteen were prima facie considered to be doli capax (except where the court found them capable of distinguishing between good and evil).[3] Proof of malice had to be "strong and clear beyond all doubt and contradiction."[4]

There has been little investigation as to how the pre-Confederation courts took the age of minor defendants into account.[5] Children and teenagers were forced to serve their sentences alongside adult offenders in typically filthy, overcrowded prisons. There were many instances where justice was uneven and punishment was extreme.[6]

In 1857, the Province of Canada passed its first Acts concerning juvenile offenders, providing special procedures for the trial of persons aged 16 or less,[7] and maximum penalties for larceny (other than by indictment) of three months' imprisonment or a fine of £5,[8] Minor defendants still had the option of trial by jury, in which case they would be tried as an adult with corresponding punishment.[9][10] Separate reformatory prisons were established for those under the age of 22 sentenced to terms of five years or less.[11] Under the latter Act, institutions were established at Île aux Noix in Lower Canada (later moved to St-Vincent-de-Paul in Montreal in 1862),[12] and Penetanguishene in Upper Canada.[13] While Canada did not otherwise distinguish their terms from those given to adult offenders, Nova Scotia passed legislation that limited juvenile sentences to 90 days.[13]

In 1868, the new Parliament of Canada provided for the transfer of "incorrigible" juvenile offenders from a reformatory to a penitentiary to serve the remainder of their term.[14] It also provided for the transfer of offenders from a penitentiary to a reformatory, provided that they had been sentenced to a term of at least two years, and had to be "susceptible to reformation."[15] This was considered to be a regressive step from the measures taken in 1857,[16] and was amended the following year to remove the "susceptible to reformation" requirement and to allow the courts, for terms of not less than six months and not more than five years, to send convicted juvenile offenders to a reformatory.[17] This reflected concerns that those sentenced to terms of greater than five years were at higher risk of recidivism, and were thus beyond the reach of successful intervention.[18]

The former Act of the Province of Canada dealing with trial and punishment was repealed and replaced in 1869 by the Parliament of Canada.[19] The Legislative Assembly of Quebec passed new legislation in 1869 providing for Certified Reformatory Schools,[20] in consequence of which the former Act dealing with young offenders' prisons was repealed with respect to that province.[21]

In 1875, a federal Act was passed[22] that provided for juvenile offenders to be sentenced to a reformatory for terms of not less than two years and not more than five.[23]

The Criminal Code was passed in 1892 to consolidate the criminal law in Canada.[24] The following provisions of it concerned juvenile offenders:

• Standardization of the age of criminal culpability, so that no juvenile under the age of seven could be convicted, and those between the ages of seven and thirteen could be convicted only where they were "competent to know the nature and consequences of the conduct, and to appreciate that it was wrong."[25]
• provision for the trial of juvenile offenders to be conducted without publicity[26]
• special provisions for the trial of indictable offences[27]
• the reenactment of the sentencing provisions relating to sentencing to a reformatory, with respect to other offences.[28]

Separate legislation relating to juvenile offenders was later passed in 1894,[29] which provided for the separation of juvenile offenders from older persons and habitual criminals during arrest, confinement, trial and subsequent imprisonment, as well as integrating efforts with those of children's aid organizations being organized by the provinces.[30]

There were several provincial initiatives in this period that were designed to complement the federal measures. Ontario passed the Industrial Schools Act in 1874,[31] in order to provide institutions to serve neglected and problem children.[23] In British Columbia, the Legislative Assembly of British Columbia passed the Reformatory Act in 1890,[32] under which a designated institution could admit those juvenile offenders sentenced to terms of two to five years, boys transferred from jails and incorrigible or misbehaving youngsters between ten and thirteen who needed supervision.[33] There was also provision for remission for good conduct and for binding over to apprenticeship.[34]

Richard William Scott

Frédéric Liguori Béique

Allen Bristol Aylesworth

Parliamentarians who promoted the Bill

A Bill to reform the law relating to juvenile offenders was initially introduced to the Senate of Canada in 1907 by Secretary of State for Canada Richard William Scott, but did not pass before that session's prorogation.[35] It was reintroduced the following year by Senator Frédéric Liguori Béique, and received Royal assent on 20 July 1908.

In reintroducing the Bill, Senator Béique summarized the philosophy it expressed:

It is unquestionable that the principle of the probation officer or of the probation law, as applied in England many years ago, as applied in this country many years ago also, and especially the principle of probation officers, persons whose duty it will be to take care of these children, to follow them, to ascertain as to whether they attend school, whether they associate with persons of bad character or not, and adopting means of protecting them throughout their younger years, that a law of that kind cannot fail to have very beneficial results.[36]

The Act was held to be a valid exercise of federal jurisdiction within the scope of its criminal law power.[43]

It provided for integration with provincial legislation concerning the welfare of children:

39. Nothing in this Act shall be construed as having the effect of repealing or over-riding any provision of any provincial statute intended for the protection or benefit of children; and when a juvenile delinquent who has not been guilty of an act which is, under the provisions of the Criminal Code an indictable offence, comes within the provisions of a provincial statute, it may be dealt with either under such Act or under this Act as may be deemed to be in the best interests of such child.

In considering this provision in 1967, the Supreme Court of Canada held that BC's Motor Vehicle Act did not fall under s. 39, as it was not intended for the protection or benefit of children, and therefore charges under it could only be heard by the Juvenile Court.[44]

The Act also tended to displace non-judicial initiatives to address the needs of juvenile offenders. In that regard, a Quebec measure[45] that diverted young people from the criminal justice system was held to be unconstitutional.[46]