Selected excerpts from
Spiralling out of Control:
LESSONS LEARNED FROM A BOY IN TROUBLE
REPORT OF THE Nunn Commission of Inquiry
The Honourable D.Merlin Nunn Retired Justice of the Supreme Court of Nova Scotia, Commissioner
DECEMBER 2006
1
Published on the authority of the Lieutenant Governor in council by the Nunn Commission of Inquiry.
? Crown copyright, Province of Nova Scotia, 2006
ISBN: 1–55457–085–9
Library and Archives Canada Cataloguing in Publication
Nova Scotia. Nunn Commission of Inquiry
Spiralling out of control : lessons learned from a boy in trouble : report of the Nunn Commission of Inquiry.
"The Honourable D. Merlin Nunn, Retired Justice of the
Supreme Court of Nova Scotia, Commissioner".
"December 2006".
ISBN 1-55457-085-9
1. Juvenile justice, Administration of--Nova Scotia. 2. Juvenile detention--Nova Scotia. 3. Juvenile delinquency-- Nova Scotia. 4. Juvenile delinquents--Nova Scotia. 5. Youth-- Legal status, laws, etc.--Nova Scotia. I. Nunn, Merlin D. II. Title.
HV9109.N6N68 2006 364.3609716 C2006-906641-8
Permission is hereby given by the copyright holder for any person to reproduce this report or any part thereof.
This report is available on the Internet in electronic format at http://www.nunncommission.ca.
2
Introduction The Tragic Intersection of Two Strangers’ Lives
October 14, 2004, was a fateful day in the lives of two Nova Scotians. Theresa McEvoy, the 52-year-old mother of three sons, was doing what she did most days in her work life as a teacher’s assistant. She had
driven home at noon, had lunch with one of her sons, and was driving back to school for the afternoon session. AB, a 16-year-old boy, whose life at this time was ―spiralling out of control,‖ was joyriding in a stolen car
in the same area of Halifax.
Though they were unknown to each other, their lives catastrophically came together in one terrible moment when the vehicle driven by AB, at very high speed, went through a red light at the intersection of Connaught Avenue and Almon Street, then crashed into Ms. McEvoy’s car. Theresa McEvoy was instantly killed. AB’s life would never be the same.
It was this tragedy and the circumstances of AB’s life and activities and his involvement in the justice system of this province that gave rise to the appointment of this Commission.
…
Chapter 1 The Establishment of This Public Inquiry
As soon as the circumstances around the tragic death of Theresa McEvoy became known, there was a great hue and cry. The car that collided with Ms. McEvoy’s car, causing her instant death, had been stolen. It was
being driven at an extremely high rate of speed on a city street by a 16-year-old youth who, two days earlier, had been released from custody despite 38 outstanding criminal charges against him.
Media coverage was extensive. Fingers were pointed in every direction in an attempt to place blame, and very serious criticisms were levied against the federal Youth Criminal Justice Act1 (YCJA). A great deal of pressure was being directed towards the Minister of Justice to find out what went wrong and to take corrective measures.
Chapter 2 Scope and Jurisdiction of This Inquiry
… The operation of the federal Youth Criminal Justice Act, especially its provisions regarding pre-trial detention, is at the very centre of the mandate of this inquiry. Throughout all of these aspects of the inquiry, the YCJA played a dominant role, and it was the subject of detailed review and an essential part of my inquiry. I find in this report that AB was released on October 12, 2004, because, perhaps primarily, the policies of the YCJA presumed his release in the circumstances. There is no jurisdictional concern in my considering the operation of the relevant parts of the act. This report can quite properly comment on how the YCJA was applied on the facts of this case and the role that the act had in AB’s circumstances. Indeed, I have of the act include. I will consider the decisions made by the various players in the justice system in light of those requirements.
3
…
In youth criminal justice, there is no bright line between the questions of federal or provincial jurisdiction, even though the governing law is federal. The YCJA, while a federal statute, leaves the majority of its implementation to the provinces. I heard evidence from senior justice policy makers in the Province of Nova Scotia about the detailed consultative process that is continually under way between the Government of Canada and the governments of the provinces to discuss changes to the federal criminal laws. These consultations take place at the practical and policy development levels (such as law reform meetings and national inter-jurisdictional standing committees on youth justice) and at the highest levels. I learned about regular meetings the Minister of Justice of Canada has with his provincial counterparts in which legislative change is discussed…
In fact, the YCJA is equally a piece of social legislation as justice legislation. Its aim is prevention of crime by addressing the circumstances underlying a young person’s offending behaviour and
his or her rehabilitation and reintegration into society. To this end, the act contemplates the involvement of the community and its agencies. It assumes the creation of systems and other means all directed to encouraging offending youth to take responsibility for their acts, to changing their behaviour patterns, and to helping them to improve their lives to mature as responsible citizens fully able to participate in society. This involves all the components of our social agencies.
What are the ―circumstances underlying a young person’s offending behaviour‖ that the act aims to address to prevent crime? Undoubtedly, they refer to the ―risk factors‖ outlined in the testimony presented to
the inquiry, all of which formed part of the complete AB story and relate directly to the issues being inquired into, including the approaches Nova Scotia takes to children at risk. To determine the appropriateness of the practices and procedures in place regarding AB, one must take into consideration the adequacy of these practices and procedures to conform to and meet the requirements of the YCJA.
…
Chapter 8 Understanding the Context of Youth Crime
…Youth crime is an issue in all societies and has been since time immemorial. It is universal. It runs the range from those youth who, for whatever reason, find themselves in conflict with the law once or twice and never again to a smaller group who repeatedly offend and unless rehabilitated continue on to a life of adult crime.
Taking history into account, it is unlikely that we will ever rid ourselves of youth crime. The challenge we face is to create a social order that will eliminate as much as we can by recognizing youth problems early—in the homes, in the schools, and in society at large—
and providing help and encouragement, where and when it is needed, by means of an organized and collaborative effort of all social agencies involved with youth and parents, all divisions of mental health, schools and education, and justice. The emphasis must be on collaboration. The aim
4
should be to meet the problems with the proper response by recognizing at an early stage the symptoms leading to youth justice problems and providing an appropriate intervention to give the child the means to cope with his or her situation. If it is done in time, by people who have the skills required, who have an interest in youth and youth development and the wisdom to understand the problems they observe, and who know the best approach to deal with them as provided by their training mixed with a real smattering of common sense, it cannot help but be more successful. It will cut down the occurrence of youth crime substantially.
…
It is clear from the evidence presented to me that if we want a safer society free of a large part of youth crime, we have to look at our educational system, our social services systems, our health and community services, our youth programs, and our justice system. It is in those acting together that a safer society, as we shall see, can be achieved.
…
The first federal legislation in Canada respecting the criminal responsibility of youth was the Juvenile Delinquents Act, passed in 1908. It related to youth between the ages of 7 and 16 years in Nova Scotia (the age varied from province to province). It was welfare oriented, with a focus on treatment directed to change behaviour. However, the means used were indeterminate custodial sentences for youth at training schools to rehabilitate the offenders. There was little concern for legal rights, and long sentences were served for minor offences. Gradually, pressure built for reform, and with the passage of the Charter of Rights in 1982, it became obvious that the act could
not be sustained. It was replaced by the Young Offenders Act (YOA)in 1984.
Under the YOA, the ages provided for criminal responsibility for youths were made 12 to 18 years of age throughout Canada, and there was a great deal more emphasis on legal rights and due process. However, while it had an accountability focus, the YOA lacked a clear sentencing philosophy, with a correspondingly wide judicial discretion, resulting in great variations in the sentences imposed. The result was excessive use of the courts and custodial sentences.
More young people were being charged and sent to court for relatively minor offences, and more of them were being sentenced into custody. In fact, youth were much more likely to be put into custody than were adults. The result was that by the late 1990s Canada had one of the highest rates of use of courts and custody for young people in the world, including, on a per capita basis, the United States.
Again, the pressure for change mounted, and the YOA was replaced. The Youth Criminal Justice Act (YCJA) came into force on April 1, 2003. This is a complex statute of 200 sections (compared to about 40 in the Juvenile Delinquents Act and about 80 in the YOA). It completely changed the system of youth justice. Basically, it provided for much wider use of non-court intervention and other rehabilitative measures, while intending to drastically reduce the use of custody.
5
…
To understand the challenges of youth crime in today’s world in Canada, one first has to accept certain premises upon which the youth justice is based. In view of the extent of present-day knowledge of growth and development, one has to take as a given that the period of adolescence, 12 to 18 under the YCJA, is marked by a series of characteristics such as immaturity, under-developed sense of responsibility, vulnerability, and undeveloped character and moral sense, to name a few, which distinguish adolescent behaviour from adult behaviour.
Another given is that the approach of the YCJA reflects the advances made in legislation governing youthful offenders based upon actual experience under previous legislation and also upon the developed philosophy of the rights of all children, reflected in the Charter of Rights and in the United Nations Convention on the Rights of the Child.
A third given is that the approach of Parliament through the YCJA is based, first, upon rehabilitation of the offender and this is to be achieved through mainly community means, and, second, upon the principle that custody is to meant be severely restricted.
Throughout this inquiry no evidence was introduced to challenge these points. In fact, the testimony largely supported the recognition of behavioural difference between adolescents and adults and the manner of treatment of young offenders programmed by the YCJA and the activities of involved community and government departments. Further, the evidence clearly established that the YCJA has been highly successful in the manner in which the vast majority of youth is handled. Basically it is very sound legislation.
Based upon the suggestions of witnesses who testified at the inquiry from their various interests and points of view on youth justice and upon the recommendations of the various counsel who were granted standing, I see three major areas in which I can address the problems identified in this report…
The three areas I have identified are the administration of justice and accountability, more effective youth crime legislation, and prevention of youth crime.
1) Administration of justice and accountability
In this area, I will be concerned with how the Nova Scotia youth criminal justice system deals with a youth charged with a criminal offence, for example, how a youth is processed, from the initial charge to final result—the problems identified, beneficial changes, and targets with controlling mechanisms. There are also promising new programs planned that will more effectively deal with youths already in the justice system and increase accountability…
2) More effective youth crime legislation
A number of provisions of the YCJA loomed large in my consideration of the facts of AB’s situation. Because of this, I must take a hard look at the Youth Criminal Justice Act. I fully recognize this act to be a federal
6
statute and beyond my direct jurisdiction. Nevertheless, my mandate does require me to look into what happened regarding AB’s release from custody. That directly involves the YCJA, thereby enabling me to comment on the operation of the act itself and to make any recommendations I see fit for advocacy for change to the Nova Scotia Minister of Justice…
3) Prevention of youth crime
The inquiry has been concerned with broader issues of youth crime, including its causes, how we identify these at an early stage, and the responses required of the various social agencies and institutions. Because the YCJA is directed towards substantial community involvement, it would be irresponsible of me not to consider its role in a larger context of youth crime and improvements necessary to accomplish the desired result of lessening youth crime and rehabilitating those who become involved in criminal acts.
I will be considering those broader areas, identifying many of the problems facing youth that lead to crime; our strategies, practices, and procedures presently in place; their inadequacies; and what services must be provided to meet these problems in a timely, efficient, and organized manner. We can make substantial improvement to our systems that will greatly assist in preventing youth crime. At the same time, we can provide the mechanisms for these youth so they can meet their particular risks head on, learn and develop the necessary coping abilities to deal with them, with help and supervision where necessary, and develop their potentialities without behavioural aberrations destructive to themselves and to society at large.
Chapter 10 Advocacy for Changes to the Youth Criminal Justice Act
…it is important to state that not one of the parties with standing took exception to the philosophy behind the act or to the majority of its provisions. Rather, they identified a number of sections causing concern and recommended changes.
…
This is not to say that there are not those who are opposed to the YCJA, just as there were those opposed to the previous acts, the Juvenile Delinquents Act and the Young Offenders Act. Many of these critics believe that jail is the answer: ―There they’ll learn the error of their ways.‖ These critics pay little attention to contrary evidence, nor do they understand that with young persons jail for the terms they recommend does not correct or rehabilitate, but rather often turns out a person whose behaviour is much worse than it was. Others espouse the vengeful adage ―adult crime—adult time,‖ paying no attention to the fact that it is a
youth crime and not an adult crime. I have elsewhere summarized the experts’ views on the particular nature of youth offending, in general and in the case of AB.
7
It is apparent that some members of the public share these critics’ views. The Commission received a number of e-mails and letters very critical of the YCJA, claiming that society is much too soft on our youth. I have received similar suggestions from people I have met outside the inquiry. Many expressed the view that the act should be repealed.
These views are representative of a ―revenge-based‖ response to
criminal activities, which seems to have become more prevalent in the adult system in recent years. The punishment must fit the crime, and preferably should be on the severe side. A perpetrator should be locked up for as long as possible. Such an attitude is in direct conflict with modern approaches to treating criminal behaviour. Most of the adherents of these views refuse to accept that youth should be treated differently and separately from any adult system.
Nevertheless, they are entitled to the views and opinions they express. Unfortunately, in the present state of our youth criminal justice system, they are unable to make any contribution to reform even when some reform is not only reasonable but desirable.
…
The YCJA, though several years in the making, only came into effect in 2003. It was a major shift in public policy. While one might expect that some time would be given to shake out the problem areas, such was not the case. Despite its major success in reduction of custody and in fostering community involvement, it has received severe public criticism from its introduction, most of which relates to a lack of emphasis on public safety, a belief that there are no consequences to youth criminal acts, and a belief that, in general, the act lacks the measures needed to effectively control youth crime.
Since its inception, the prevailing attitude among police, judges, Crown attorneys, defence counsel, and related staff people, and many of the public, has been that YCJA initials actually mean ―You Can’t Jail Anyone.‖ The act is clearly not that prohibitive. However, it does appear that such was, and is, accepted as the under-lying philosophy of the act, especially in relation to the pre-trial
detention.
…
I cannot overestimate the importance of taking a balanced approach. Parts of the YCJA must be changed in order to create a workable and effective approach to handling repeat young offenders in a manner based upon protection of the public as a primary concern, as well as providing a means to step in to halt unacceptable criminal behaviour in a timely manner. This is not an option. It is crucial.
…
Deputy Chief Christopher McNeil of the Halifax Regional Police gave testimony at this inquiry. I was impressed with his practical and balanced
8
approach to the issues, arising from his experience. His evidence was persuasive. In a January 18, 2006, report to his chief, related to the YCJA, he wisely stated:
The YCJA is premised on the belief that the vast majority of young offenders, with proper guidance and support, can overcome past criminal behaviour and develop into law-abiding citizens. I believe that this is true for the vast majority of young people, however, the YCJA is ineffective in dealing with the small percentage of young people from whom the public needs protection.
The YCJA fails to recognize that there is a small group of incorrigible young people whose activities pose a risk, and that the criminal law must provide mechanisms to protect society from their behaviour. The YCJA is very prescriptive legislation and restrictions on the use of custody in the YCJA have been interpreted as a bar to detention or custody in certain cases which risks public safety.
Chapter 11 Addressing the Causes of Youth Crime: Targetting
Resources and Prevention
This section relates to the broadest area of my mandate. It falls under the discretionary clause, though it also stems directly from the events in AB’s life leading up to his offending behaviour. It would be hard to design a better set of circumstances than those that occurred here in the life of a 16-year-old boy to illustrate societal failures in education, social services, mental health, justice, and the statute governing youth criminal justice.
In the document Perspectives on Youth Crime in Nova Scotia, spoken to at
the inquiry by Robert Purcell, the following list of risk factors are indicated to be consistently and strongly related to delinquency, youth crime, and violence:
• raised in poverty
• neighbourhood crime/disadvantage
• exposure to or victim of violence
• early childhood aggression
• hyperactivity/implusivity
• association with deviant peers/siblings/parents
• early initiation of violent behaviour and involvement in other
forms of anti-social behaviour (e.g., substance use)
• poor family management practices
• poor academic achievement
• member of a gang
• being male.
Most of the studies of offending behaviour and the risks leading to it are related to males. There are, however, indications that some of the above factors are common to young females as well, though there are some additional factors that contribute to female offending behaviour. Some of those are also referred to in the foregoing study:
9
• problematic family dynamics and parental relationship
• gender-based oppression and abuse
• mental health and personality factors
• school difficulties
• alleviation of boredom and attention seeking grounded in a need to
be noticed, including being stimulated and valued
• abuse of alcohol
• connections to delinquent peers, especially older males • negative self-representation.
…
First, the risk factors listed fall into general categories:
• family
• school
• disabilities and disorders
• relationships
• the individual youth, male or female.
Second, each of these categories falls under the jurisdiction and concern of one or more of our government departments: Community Services, primarily for families; Education, primarily for schools, including disabilities and disorders; Health and Health Promotion and Protection for mental health, disabilities and disorders, the individual, and relationships, as well as for some family situations.
Third, there is an obvious overlap of responsibility for the provision of needed services from one department to another. There also may be a similar overlap between separate sections or divisions within a department.
Finally, each of the departments mentioned operates separately and independently from the others, as do many of the divisions within each department. This is understandable. Professionals tend to centre their interest in the area of their training, often to the exclusion of other considerations. Added to this is the burden of the heavy load of numbers of those requiring their services. Additionally, there are limits on services in the departments concerned, attributable to available resources and statutory limiting provisions.
Chapter 12 Consolidated Recommendations
Delay in the Administration of Youth Criminal Justice
Recommendation 1
Front-end delay in the administration of youth criminal justice in Nova Scotia should be immediately reduced by requiring a young person facing a new charge on a serious crime, or a young person facing other pending charges, to appear in Youth Justice Court by the next scheduled Appearance Date, or within one week of arrest.
Recommendation 2
10