Looking Back to Look Forward: Suggestions for New Directions for Sentencing Under the YCJA
In the 2006 Nunn Commission Report - “Spiralling Out of Control: Lessons Learned from a Boy In Trouble” - Nova Scotia Justice Hon. G. Merlin Nunn presented 34 recommendations for the improvement of administration of the youth criminal justice system, with reference to accountability, the Youth Criminal Justice Act RSC 2002, c. 1., and preventing youth crime. The Report was widely hailed, and quite properly so, as an insightful, detailed, thoughtful, and compassionate analysis of a case involving a tragic death, and a teen accused. However, ten years on, it is now very clearly time to apply a nuanced equality lens to the Nunn Report’s analysis and consider diversity in contemplating how the youth criminal justice system should operate in Canada.
The Commission’s Report became highly influential on the drafting of Part 4 of Bill C-10, The Safe Streets and Communities Act which, when it came into effect in 2012, made significant changes to the regime for sentencing persons aged 12-18 in Canada who had been convicted of criminal offences. On a positive note, C-10 finally eradicated the holding of adolescent offenders with adults in adult custodial facilities. However, of concern, with the passing of s. 38(1) of the YCJA was the amendment to instate “denunciation” as a sentencing objective and, in effect, make it easier to hold youths in custody.
The bulk of the changes C-10 made to the YCJA were sold by the government in power at the time as responses to the Nunn Commission Report. Nonetheless, Justice Nunn subsequently distanced himself from much of C-10. However, the issue of diversity was not addressed. Indeed, in his remarks speaking out against the adult sentencing provisions of C-10, Justice Nunn said, [sic] “adult prison is no place for a young boy.”
At the time of the Nunn report in 2006 and the amendments to youth criminal justice law it precipitated, the consequences of law reform to adolescent girls were sidelined in, if not totally absent from, policy discussion. Gender diversity, as well as race, did not figure in the report in any significant way. The Commission was tasked with tendering a report based on a single case study of a white Nova Scotia teen boy.
Recommendations were made based on that case alone. Caveats were not entered about how the system might apply differently in cases where the accused was identified and socially situated with a different embodiment.
Notwithstanding its meticulous and considerate analysis, the Nunn Commission Report pays remarkably little attention to what might constitute the limitations of contemplating how to reform the entire youth criminal justice system on the basis of experiences of one white male adolescent alone. In doing so, it treats the white male as a normative young offender about whom analysis is offered and for whom policy is made. The Report only cursorily looks at whether the system is equally inadequate in respect of its treatment of differently situated offenders. It makes no mention of gender disparities in treatment of offenders. While the report makes a passing nod to the fact that adolescent girls and boys are different populations, it sets forth no analysis of whether these populations have different needs or are treated differently. Also conspicuously absent from the report is an analysis of race and, in particular, aboriginality or Indigenous heritage.
Skip ahead ten years from the Nunn Commission Report to 2016, and we have widespread public awareness of longstanding crises with deaths in custody, made common knowledge, in part, because of the 2014 Ashley Smith inquest verdict, which found her death in custody to be a homicide, with the system at fault for her death. Canada is also experiencing escalating incarceration rates at the Federal level, dramatically increasing rates of female offenders in custody, and in particular an increase at all levels, including youth, in the incarceration rate for Indigenous female offenders. At the same time, the Federal government has committed to act on the Truth and Reconciliation Commission’s 2015 Calls to Action in relation to reconciliation concerning the administration of justice. These events falling between 2006 and 2016 deeply trouble the assumption underlying the Nunn Commission report that general suggestions for law reform can safely be made based upon a single case absent consideration of the embodiment and social location of the accused involved.
Ten years after the initial tendering of the Nunn Commission Report, under a different political regime, being aware of Justice Nunn’s own concerns about C-10, and with the knowledge we now unequivocally have about problems with inequality across Canada’s criminal justice system, it’s clearly time to take another look at the YCJA . It would make sense for government to consider the diverse embodiment, gender, race, and particularly Indigenous heritage, in reconsidering the sentencing regime generally, and denunciation specifically, in relation to youths.