Sometimes, when your knee hurts, the problem is actually with your hip. The same is true for neck and should pain: problems can become obvious in one place but originate somewhere else, because the systems are connected. All of which is to say that, when we are confronted with a problem of over-incarceration in Canada (and it’s abundantly clear from Statistics Canada data that we are), and overburdened courts leading to delays, and dismissals of serious charges ( after R. v. Jordan  1 SCR 631), the source of that problems isn’t necessarily only located in the place that it appears.
Canada’s Criminal Justice and Correctional systems are complex. It’s a truly federal system, with the Federal criminal law doctrine interacting with thirteen provincial and territorial systems addressing procedural aspects of setting up courts, as well as providing their own youth criminal justice systems. Provinces and territories also provide uneven funding for community supports to criminal justice. The system is complex indeed. Because they are complicated, these systems cannot be easily fixed with one quick solution.
There is no single quick fix for criminal justice, but there are multiple strategies that, together, can be employed to improve the situation. As I argue in my chapter, “Still Wearing Scarlet” in the just-released Demeter Press anthology Bad Mothers: Regulation, Representations and Resistance and as I examine, in detail, with reference to the Ashley Smith case in my 2015 monograph, Looking for Ashley: Re-Reading What the Ashley Smith Case Reveals about the Governance of Mothers, Girls, and Families in Canada, the “cradle-to-incarceration continuum” is a major problem precipitating a disproportion of vulnerable, poor, indigenous and racialized youths from state care into the criminal justice system, and finally into prison.
The widely publicized inquest into Smith’s death at age 19 in Federal Corrections custody at Grand Valley prison, which ultimately ended in the shocking verdict of homicide, focused for jurisdictional reasons, on her time in adult prison only. The four to five years she had spent crossing over between group homes and correctional custody in New Brunswick’s child welfare and youth justice systems through the machinations of hundreds of charges for disciplinary infractions was not part of the conversation at the inquest.1 However, as I argue in my book, those years and the hundreds of youth charges, were crucial contributing factors to her death.
This “cross-over” is well-known amongst practitioners, where, for example, the small number of youths in care in Ontario make up 40-50% of the accuseds in the youth system. I am involved with the Cross Over Youth Project , a multidisciplinary team of evaluation researchers, funded by the Law Foundation of Ontario. It is a pilot project which takes measures to address the criminal charging of youths in care through provision of “two-hatter” judges and lawyers in the youth justice court. The Cross-Over Youth Project is an exciting initiative bringing together professionals from the child protection and justice systems.
One key remedy to aid the work of the COYP could be to go upstream from the courts to where the charges come from. Legislative and regulatory change should be made to provincial and territorial child care regimes to provide alternative mechanisms and supports for dealing with adolescents’ misbehaviour while in state care. Legislative provisions could be matched and mirrored with new supports and procedures within the child welfare systems to discourage and reduce the reliance of group homes and child welfare authorities on resorting to charging youths. Ontario is currently in the process of debating Bill 89 to replace the province’s current Child and Family Services Act, but this issue is not addressed (at least yet) in the legislative proposal. It should be.
To remedy delays in the criminal justice system, overburdened courts, and over-filled prisons, change should be made not only to the criminal law but to our provincial and territorial regimes for child protection.
As Desmond Tutu is quoted for saying, sometimes we need not only to pull people out of the river, but also to look upstream to where they are falling in.
1 Although they had been the subject of an earlier report of the New Brunswick Ombudsman, in 2008 The Ashley Smith Report: http://www.cyanb.ca/images/AshleySmith-e.pdf