The recent expression of concern at 10 year olds being imprisoned is quite appropriate, but the age of criminal responsibility is not the only issue. More important is who does it and why they do.
It is certainly the case that raising the age of jail ability to 14 would place a barrier in the way of the present unjustifiable practice of locking kids up. But why is it done now?
Anyone familiar with the legislation dealing with criminal proceedings against children will note that incarceration is seen as an absolute last resort. Indeed, the penalty sections of these Acts specifically list a graded (in severity) approaches to sentencing, beginning with reprimand without conviction, non-conviction bond, unconditional bond, bond with conditions, bond with supervision, home detention, and finally incarceration ( juvenile detention).
My experience was that you seldom reached the top of the list. If you moved up it. So what now happens is that the Children’s Courts clearly ignore the legislatures intention of a scheme which moves up in severity. It is apparent that the heads of these jurisdictions do NOT draw magistrates attention to the legislature’s intention, and, in my experience encourage the reverse. As soon as it was discovered that I used the escalating scale of penalties, I was precluded from the jurisdiction.
When the statistics show that 90% of young persons who go into juvenile detention graduate to jail after turning 18, using any legislative provision to prevent that happening would not only be sane, but economical.
Where do we turn in the face of this? One would think Ministers for Juvenile Justice would be drawing the attention of the lower Courts to the facts and encouraging a more measured approach to Sentencing. legislating four years of a young person’s life out of this danger is a solution, but the practice of the Courts and prosecution services could be substantially successful in reducing juvenile detention.
At a Gama Festival nearly twenty years ago, a learned professor who had integrated Inuit customary law into Canadian law, said. “Getting the law right is one thing, but it is more important to have the right people do it.”
Jim Coombs has worked in the nuclear industry, is an economist by training and a statutorily retired magistrate.
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