The Evolution of Juvenile Justice in Canada
1. Juvenile Justice Before 1908 (continued)
The reform impulse
Although children were subjected to adult legal standards, there were growing signs early in the nineteenth century that attitudes were changing. The reform movement that emerged in Canada owed an intellectual debt to the eighteenth-century Age of Enlightenment. The eighteenth century witnessed a great intellectual ferment in science and philosophy as a new generation of thinkers challenged long-standing ways of looking at and explaining society. People such as Voltaire, Rousseau, Diderot and Montesquieu in France; Jeremy Bentham, David Hume and Adam Smith in Great Britain; and Cesare Beccaria in Italy sparked an intellectual revolution and reform movement that had worldwide repercussions. Enlightenment thinkers were absorbed with an interest in humanity and a belief that society could be improved. They sought reform of economics, of ethics, of religion, of government and of society. Some called for the abolition of slavery; some demanded education for the masses; some campaigned for democratic government; and some, such as Beccaria, called for an end to the cruel practices and injustices that characterised the penal system throughout the world.
Early penal reform ideas found a ready reception in Canada. For example, an 1816 Act of the Nova Scotia Legislature acknowledged that putting people in jail for minor criminal offences was a useless expense. The Act also included the reformation rather than simply the punishment of the offender as an objective for those in jail.
A more comprehensive expression of reformist ideas was contained in an 1836 report by Charles Duncombe to the House of Assembly of Upper Canada. Duncombe was a physician and politician elected to the Legislature of Upper Canada in 1834. He was chairman of a commission appointed to report on the subject of prisons and penitentiaries. He held the view that prisons should not be merely for punishment but places of reformation and of moral and intellectual improvement.
Condemning the corrupting effects of indiscriminately grouping together persons of all ages and degrees of guilt, Duncombe called for an effective system for the classification of convicts. He made a special point of calling for dramatic changes in the treatment of young offenders.
Every person that frequents the streets of this city must be forcibly struck with the ragged and uncleanly appearance, the vile language, and the idle and miserable habits of numbers of children, most of whom are of an age suitable for schools, or for some useful employment. The parents of these children, are, in all probability, too poor, or too degenerate to provide them with clothing fit for them to be seen in at school; and know not where to place them in order that they may find employment, or be better cared for. Accustomed, in many instances, to witness at home nothing in the way of example, but what is degrading; early taught to observe intemperance, and to hear obscene and profane language without disgust; obliged to beg, and even encouraged to acts of dishonesty to satisfy the wants induced by the indolence of their parents - what can be expected, but that such children will in due time, become responsible to the laws for crimes, which have thus, in a manner, been forced upon them? - Can it be consistent with real justice that delinquents of this character should be consigned to the infamy and severity of punishments, which must inevitably tend to perfect the work of degradation, to sink them still deeper in corruption, to deprive them of their remaining sensibility to the shame of exposure, and establish them in all the hardihood of daring and desperate villainy? Is it possible that a Christian community can lend its sanction to such a process, without any effort to rescue and to save?
Duncombe argued that municipal governments had an obligation to help and protect unfortunate children and that these juveniles should be able to look upon the authorities as fathers. He extended this responsibility to the entire community, suggesting that everyone should be concerned with the problem of juvenile delinquency. He closed his remarks with the proposal that the community help the law enforcement agents in rescuing those pitiable victims of neglect and wretchedness from the melancholy fate that almost inevitably results from an apprenticeship in common prisons.
Duncombe's attitude was a distinct departure from the philosophy that prevailed at the time, which blamed individual character defects for human distress. He was among the first of the early Canadian reformers to suggest publicly and officially that the roots of juvenile delinquency lay outside the person and that the entire community bore a responsibility in dealing with the problem. Although he did not offer a specific remedial plan, he made it clear that treating young offenders like adult criminals was not a proper solution. He was equally clear on the issue of keeping delinquents out of jail.
For advocates of reform in the treatment of juvenile delinquents, another early source of encouragement came from the report of the 1849 commission headed by George Brown. The commissioners devoted a section of their report to the treatment of juveniles, observing that in waging war with crime, there is no department so satisfactory, so encouraging, as the rescue and reformation of the young; and there it is the battle should be fought with utmost warmth. In this spirit they recommended the construction of houses of refuge for young offenders, suggesting that one be established at either Montreal or Quebec City in Lower Canada and another at Toronto or Hamilton in Upper Canada. The refuges, according to the commissioners, should be divided into two departments, one to accommodate neglected or undisciplined children and the other to house those convicted of a crime. The Brown Commission further recommended that the centres be put under the control of the penitentiary inspectors and that a board of managers be appointed to make weekly visits, look after the apprenticing of the children and oversee the philanthropic activities of the institution. The young people would be offered educational and vocational instruction, and they could be apprenticed out for trades training. The commissioners envisaged a system that would be a combination of education, labour and healthful exercise. The children apprenticed out would remain under the authority of the board of managers and could be taken back to the house of refuge if they misbehaved.
Reformist ideas did not go unchallenged, nor did they generate immediate action. In contrast to views such as those expressed by Charles Duncombe, many still believed that all offenders, including the young, should be punished. They argued that lenient treatment would simply encourage the young to more crime. Consequently, the progress of reform was held up by debate over questions of treatment. On the one hand, there were those who, upset that current sanctions were ineffective, called for even harsher penalties. On the other hand, a growing constituency argued that it was morally detrimental for children to be put in penal facilities, and that under no circumstances should they be incarcerated for minor offences.
There were also some practical difficulties. Since there were no social agencies or welfare services, officials faced a choice of either putting young offenders in jail, returning them to oftentimes bad home situations or turning them loose to fend for themselves. Also, communities were reluctant to spend money on separate facilities for the young. In New Brunswick, for example, as early as 1845 politicians and officials expressed concern over the treatment of juveniles, and there were periodic discussions in the House of Assembly on such matters as schooling, segregation and separate facilities. But it is only in 1895 that the province opened its first industrial home. Between 1846 and 1857, more than 300 youngsters under 18 years of age were sentenced to the New Brunswick prison. Throughout the country even rudimentary changes, such as schooling for children in prison, were not without controversy. Some argued that, since the majority of children in jail and prisons came from the lower classes, too much education would encourage ideas of rising above their situation. In Upper Canada in the early 1850s, prison inspectors favoured a program at the common school level but not beyond, so that — in their words — undue aspirations will not be entertained nor will ambition lead astray.
In spite of ambivalence and even opposition to changes in the treatment of young offenders, signs of progress emerged. Possibly one of the most significant catalysts was the changing attitude towards children. As the nineteenth century progressed and the country became more civilised, society gradually turned from treating children as little adults to viewing them separately in their own right. Many people now recognised the special needs of children and emphasised the need for loving care in their upbringing. The former stern attitudes began to soften in many quarters, and the churches, benevolent and charitable societies, reformers, school officials and others reflected the change and encouraged it. The more humane attitude set the stage for some significant developments in the treatment of delinquents. Among the first innovations was a move to separate the young from adult offenders by establishing juvenile institutions. The first of these early reformatories were Isle-aux-Noix, opened in October 1858 on the Richelieu River, and Penetanguishene, on Georgian Bay, the former to serve the Eastern part of the country and the latter the Western one.
The early institutions offered a program of work, discipline, vocational and academic education and religious services. But while the intentions were good, both reformatories were classic examples of the lack of foresight and proper planning that characterised government's approach to penal facilities. Isle-aux-Noix was a converted old army barracks dating from the War of 1812 and Penetanguishene was also a former army barracks. Both institutions were plagued with problems. One major mistake was allowing too broad a spread in ages. Inmates as old as 24 were included among the detainees, with the result that young children were still being mixed with adult criminals. There were escapes, discipline problems and a lack of training programs. Neither centre put any great effort into education or reform, and both functioned for a long time as institutions primarily of work and punishment rather than rehabilitation.
But despite these and other disappointments of some early experiments, reformers were not discouraged. Society was becoming progressively more concerned with child welfare. A growing constituency was agitating for reforms and child protective legislation. Reformers were urged on by the appalling conditions in which some young offenders were placed. For example, the 1862 Inspector's Report on the Montreal jail described how, on opening the door of some of the wards,
"one is horror-stricken at seeing little boys in rags and older offenders almost in a state of nudity, commingling together, with matted hair and countenances bedaubed with filth".
Such scenes urged reformers on, and small victories were gradually won through the 1860s and 1870s. Nova Scotia, for example, passed legislation limiting the term of imprisonment for juveniles to 90 days. Many reformers and even correction officials began to call for new approaches or even to oppose altogether the imprisonment of young people. For example, E.A. Meredith, a member of the board of inspectors of asylums and prisons for the Province of Canada, submitted a report in 1862 calling for alternative institutions. He argued that imprisonment in jail tends to complete the ruin of the unfortunate child, and that the jails were nurseries of vice and hotbeds of crime. He acknowledged that the separate reformatories at Isle-aux-Noix and Penetanguishene were a step in the right direction. However, he criticised them for being remedial rather than preventive. Meredith argued that what was needed were facilities that would take in not only convicted offenders but also neglected children who were at risk. He reasoned that early intervention with proper care, education, and trades training might prevent many youngsters from developing criminal careers. He maintained that crime prevention was a better course because it is more agreeable, more hopeful, more economical, more humane and more socially responsible.
Among the first institutions to reflect such an approach was the Halifax Protestant Industrial School, which opened in the Nova Scotia capital in 1864. The school was designed to provide a home, along with scholastic and technical education, for homeless and neglected young street urchins. In this respect, its aim was prevention and help. However, the courts soon began sending convicted juveniles to the school for rehabilitation. The institution was run by a group of community volunteers. Moral education and character development were stressed in the secure, clean and good, homelike atmosphere. Discipline was not harsh, and residents were allowed considerable freedom, including the right to leave if they so desired. Unfortunately, the school suffered from inadequate funding and, as a consequence, limited programs and staff. The boys did most of the maintenance chores at the school and took odd jobs in the community to raise revenue.
The Halifax experiment was a forerunner of a host of new ideas and approaches that emerged across the country in the second half of the nineteenth century. They included industrial schools, the promotion of free public school education, foster care and progressive legislation. Behind these initiatives stood a growing reform community that collectively became known as the child savers. Individually they were diverse, but as a group they came mainly from the middle and upper classes. The majority were church members, civil servants, clergy, small-business people, public-spirited women and students. They volunteered their time in support of a variety of reforms and in lobbying governments for child protection legislation. Volunteer ranks were buttressed by a growing number of professionals such as social workers. Reform activities were also supported by an elite group of philanthropists who used their influence and gave their money in support of the endeavours of the child-saving movement.
The industrial school movement was one of the beneficiaries of the efforts of reformers. As the philosophy behind institutionalisation shifted from punishment to the rescue of children, the preferred model changed from reformatories such as Isle-aux-Noix to schools along the lines pioneered in Halifax. In 1874 Ontario passed the Industrial Schools Act, which provided for the opening of institutions to serve neglected and problem children. These institutions were meant to fill the gap between public schools and reformatories. In 1884 the Act was amended to allow the incarceration in an industrial school of any child under 14 found guilty of petty crime who, in the opinion of the judge or magistrate before whom he has been convicted, should be sent to an industrial school instead of to a reformatory.
The first industrial school in Ontario, the Victoria Industrial School for Boys, was opened in 1887 in the small community of Mimico, near Toronto. In 1892 the Alexandra Industrial School for Girls was established in Toronto. By 1894, almost 200 children were housed in Ontario industrial schools. The province of New Brunswick opened an industrial home for boys in 1893 and a reformatory for girls in 1896. All such institutions emphasised child rescue, reform through character development, moral and academic education, and vocational training.
Some of the best-run reformatories for both boys and girls were in Quebec. By the late 1880s seven institutions were operating in the province, many run by religious orders. Officials had the power to apprentice or hire out the young people, with such working time deducted from their sentences. One of the most prominent of the Quebec juvenile institutions was the reformatory school run by the Brothers of Charity in Montreal. The Brothers worked side-by-side with the boys in the workshops, functioned as counsellors and teachers and interacted in all places of daily life. The school placed strong emphasis on trades training so that the boys would be equipped to find good jobs on their release. The school enjoyed a reputation for turning out quality products, and their leather goods especially enjoyed a ready market.
Although industrial schools and refuges enjoyed widespread support among reformers, some argued that an emphasis on formal schooling could be a more effective reform and prevention program. Known as the School Promoters, proponents of this view argued that the high correlation between juvenile offenders and illiteracy suggested a causal relationship. The conviction that a lack of academic and moral education was at the root of crime, idleness and poverty went far back in time. For much of the century reformers, churches and philanthropists had been campaigning for free and compulsory schooling.
One of the most influential and persistent school promoters was Egerton Ryerson, a Methodist minister, journalist and teacher, who in 1844 was appointed chief superintendent of Common Schools in Canada West. Holding the office until 1876, he established a firm foundation for the school promotion movement. He also strongly influenced its direction. Ryerson argued that if more convicts had received the benefit of more schooling the number of people in jail would have been substantially reduced, money would have been saved and crime prevented. He maintained that schools could be the source not only of academic instruction but also of moral and religious education. He believed that people were fundamentally moral beings and that this characteristic overrode all other considerations. The schools could turn out morally educated students and therefore diminish crime and poverty.
By the last decade of the nineteenth century, a consensus had been reached on a fairly broad-based reform agenda. The Prisoner's Aid Association of Canada, for example, although primarily concerned with adults, had by 1890 developed a detailed set of proposals for the treatment of juveniles. The organisation supported a program that included special courts for young offenders, limited use of detention for those under 14, qualified staff for reformatories and industrial schools and the use of indefinite sentences. Members maintained that it was not the term itself of a sentence that was important but the opportunity it provided for rehabilitation; thus, the period of detention should depend on the time it took to bring about a meaningful change in attitude.
Another impetus to reform came from the report of the 1891 Ontario inquiry into the prison and reformatory system. During its deliberations, the commission examined a cross-section of the latest theories in penology, visited a number of institutions in the United States, interviewed a host of jail and prison officials and listened to a wide variety of testimony from individuals. The commission had much to say about juvenile delinquency : 16 of its 48 recommendations touched directly on the subject.
The report advocated measures to prevent delinquency and changes in the treatment of young offenders. Among the preventive measures were suggestions for strict enforcement of school attendance laws, municipal curfews to keep young people off the streets at night, inspection and regulation of second-hand stores and pawnshops, and assistance for child welfare agencies. In the area of improved treatment, the commission recommended that :
- 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 detained 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
Though the report dealt with Ontario, it had a national impact. It heightened public awareness and focused attention on the juvenile reform campaign. It gave further impetus and encouragement to those working in the child-saving movement.
Among the specific strategies implemented during the period was greater use of foster care. Many reformers criticised the industrial schools and reformatories as inappropriate for dealing with problem youth. They favoured a non-institutional approach that would emphasise rescue and reform and treat young people not as criminals or potential delinquents but as children in need of help and guidance. It was a social welfare philosophy as opposed to a judicial one. Its supporters advocated foster care, children's courts, the intervention of welfare agencies and legislation that would be more protective than punitive.
A leading advocate of foster care and one of the most prominent reformers of the period was John Joseph Kelso. He began his career as a reporter in Toronto and devoted much of his adult life to helping needy children. Recognising his dedication and ability, the Ontario government appointed him in 1893 as the first superintendent of neglected and dependent children for the province. Throughout the 1890s Kelso carried on a scheme with the warden of the central prison in Toronto to redirect convicted juveniles and keep them out of institutions. It was the practice for the courts to send some convicted youths to the central prison in Toronto before placing them in a reformatory or industrial school. The warden would inform Kelso of incoming boys, and he would then try to find placements for them in foster homes. The diversion was a contravention of regulations, but both officials conspired in the practice for a number of years.
Kelso and people like him in many parts of the country were able to use their influence and powers of persuasion to bring about a wide variety of humanitarian developments at both the provincial and federal levels. In response to such advocacy, on 23 July 1894, Parliament passed the first piece of federal legislation pertaining to juvenile delinquents, the Act respecting Arrest, Trial and Imprisonment of Youthful Offenders. This legislation was the culmination of a series of enactments touching on the treatment of juveniles that dated back to 1857. In that year the Legislative Assembly of Canada passed an act providing for the more speedy trial and punishment of juvenile offenders. In 1875 the federal government made a significant amendment to the Act Respecting Procedure in Criminal Cases that permitted ordinary courts to send 16 year-olds to a reformatory instead of prison for terms of not less than two years and not more than five.
Legislation was also being introduced at the provincial levels. In 1890, for example, the British Columbia legislature passed a Reformatory Act that applied to male offenders under the age of 16. It allowed for the establishment of a reformatory that would provide education, industrial training and moral reclamation. The institution admitted three categories of boys sentenced by the courts : those serving sentences of two to five years, boys transferred from jails and incorrigible or misbehaving youngsters between 10 and 13 who needed supervision. Boys in the incorrigible category could be confined for an indefinite period of not less than two years. Also, with the consent of a Supreme Court judge, on reaching the age of 12 a boy could be released and bound over as an apprentice for five years. On the other hand, boys could earn remission of their sentences for good conduct and could be released on probation at the end of one year.
In 1892 the federal Parliament passed the Criminal Code, which included a short section pertaining to juvenile delinquents, Trial of Juvenile Offenders for Indictable Offences, that dealt mainly with the trial process. A number of other sections also touched on young offenders. Section 9 provided that no one under the age of seven years could be convicted of an offence. Section 10 restricted convictions of children under 14 to cases where the offender was competent to know the nature and consequences of his conduct and to appreciate that it was wrong. At least on paper this section was a significant limitation and a victory for reformers who had been struggling for years to have children treated more benignly before the courts. Finally, section 550 provided that, where appropriate and practical, trials of persons under 16 be held apart from adult offenders and without publicity.
Although such pieces of legislation were steps in the right direction, they fell far short of the comprehensive provisions that reformers wanted. Thus, the Act respecting Arrest, Trial and Imprisonment of Youthful Offenders of 1894 was a particularly significant development. The Act provided for the separation of youthful offenders from contact with older offenders and habitual criminals during their arrest and trial, and for their commitment to places where they may be reformed and trained to useful lives, instead of their being imprisoned. The Act also provided that the trials of young persons apparently under the age of 16 years shall take place without publicity and separately and apart from the trials of other accused persons; that young persons shall be kept in custody separate from older persons charged with criminal offences and separate from all persons undergoing sentences of imprisonment; and that young persons shall not be confined in lock-ups or police stations with older persons charged with criminal offences or with ordinary criminals.
The Act respecting Arrest, Trial and Imprisonment of Youthful Offenders included special arrangements for Ontario that recognised the new role to be played by the children's aid societies. It provided that instead of imprisonment, children could be placed by the courts in the care of homes for neglected or destitute children or in charge of the Children's Aid Society. Also, when any boy under 12 or girl under 13 was charged with an offence, the court was to notify an officer of the society for the purpose of conducting an investigation and offering advice. After such consultation, the court could use a variety of options for sentencing. They included placing the child in foster care, levelling a fine, suspending the sentence or sending the child to the reformatory or to an industrial school.
The 1894 Act encompassed many of the changes that reformers had sought since at least the early part of the century. Children would now be kept away from the corrupting influence of adult criminals, afforded more privacy and processed separately by the courts. The essence of the legislation was that delinquents would be treated not as criminals in need of punishment but as young people requiring help and understanding. Instead of sentencing strictly based on the nature of the offence, background information would be provided to enable magistrates to channel delinquents in a direction that would be appropriate to their needs. Agencies outside the correctional system could now intervene and bring a different philosophy and perspective to the treatment of young people in trouble with the law.
Progressive legislation, the evolution of reformatories, industrial schools, free education and more use of foster care represented substantial progress. Yet the changes fell far short of solving or even reducing the problem of delinquency and its treatment. The entire system suffered from a host of problems including underfunding, poor facilities, inadequate programs and untrained staff. Many institutions continued to be custodial and punitive, and too many young people were still being put in jail or prison. The continued high rates of recidivism suggested that the treatment goals of rehabilitation and prevention were still not being achieved.
By the turn of the century many child welfare advocates were convinced that troublesome youth were more often victims than perpetrators. They argued that many young people suffered from the results of neglect and a poor home environment. Over a century of evidence gave strong support to this view. Survey after survey of young offenders revealed a common denominator of family problems and parental neglect. For example, out of 166 boys in residence at the Penetanguishene reformatory in September 1869, 24 had lost both parents, 39 had a deceased father and 27 had a deceased mother. Fourteen of the boys had parents who were heavy drinkers, 41 where the father was intemperate, and nine where the mother was a chronic drinker. Youth workers regularly observed, as did the Brothers who ran the Montreal Industrial School, that the majority of young delinquents were more to be pitied than blamed.
As a result, many reformers sought legislation and changes that would amount to a completely new approach. They wanted a system that viewed a young offender not as a criminal but as a troubled child in need of understanding and help. Instead of processing children through a judicial system, they sought a process more akin to the working of a social welfare program.
The new century, reformers hoped, would bring success to their campaign for improved treatment of child offenders. For many, the key to reform was new legislation that would change judicial practices. A key component of the package of changes that were being sought was the children's court. Supporters argued that a separate court system for the processing of accused juveniles would open the door to an entirely new approach in the treatment of delinquency. Buttressed by this belief, reformers mounted a broad-based campaign for new legislation.
Under the strong leadership of J. J. Kelso and W. L. Scott, a lawyer and President of the Ottawa Children's Aid Society, the reform community mounted a widespread lobbying and public relations campaign. There was still opposition, however, from some who opposed any more benign treatment of delinquents. For example, one outspoken critic, Inspector David Archibald of the Toronto police, dismissed reformers like Kelso and Scott as superficial and sentimental faddists. He complained that he did not want to be put in a position in which he would have to kiss and coddle a class of perverts and delinquents who require the most rigid disciplinary and corrective methods to ensure the possibility of their reformation. But despite such opposition, the efforts of Kelso, Scott and others came to fruition with the passage of the Juvenile Delinquents Act in 1908.
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