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August 15, 2006

It could happen to you

According to Canada's Justice Minister, Vic Toews, criminals are getting hold of 10- and 11-year-old children and coercing them into ferrying drugs around and breaking into homes. I assume this is already illegal; if it isn't, it should be. Toews' proposed solution is to make it possible to jail the victims of these crimes, namely, the 10- and 11-year-olds:

"The theory is that the child welfare system will take care of those children, but that is not the case in most provinces," he said.

"In most provinces, in fact, the child welfare system is allowing criminal conduct to continue among those types of children. They're being used by gangs and drug couriers to do break-and-enters, there are other kinds of very serious crimes, so by the time they're 12, they're already criminals."

This proposal strikes me as cynical and callous, bordering on barbaric, but to call it a surprise, as the Citizen report did, is a bit much. You can safely presume to find Vic Toews on the side of imprisoning just about anyone (unless the alternative is lethal injection, I guess). More to the point, he said the exact same thing in March:

"I'm not suggesting that we put them in prison or do anything. But the fact that (the courts) have no jurisdiction, the street gangs understand that very clearly," he said in an interview with the Sun.

"These young children are being used for break and enters, for drug couriers. So they're becoming involved in a life of crime at a very early age, and becoming seasoned criminals even before they become eligible to be charged or disciplined under the Youth Criminal Justice Act."

If Toews has any other justification for this proposal, he's not letting on. So, for the record: because the status quo isn't keeping children out of the clutches of criminals, the Canadian Minister of Justice wants to entrust 10-year-old delinquents to the corrections system, which might be the only government institution that falls shorter of its mandate than child welfare.

No, no, no, says Toews, not necessarily:

Toews said he is considering that possibility not because he thinks someone that young should be jailed, but because he thinks youth courts should have the power to intervene in the lives of younger children who have fallen "under the influence of criminal elements."

A judge could be given the power to "assist" a child by ordering treatment or some other "disposition," Toews said, adding that his main interest is treatment, not imprisonment.

I hope he'll forgive my skepticism, especially since he's refusing to rule out jail sentences for children under 12. The Conservatives' election platform included mandatory adult sentences for young offenders convicted of certain crimes (why even have youth justice then?) and instructing judges to consider "deterrence and denunciation" in sentencing young people. This betrays a fundamental disbelief in the current system, which focuses primarily (and in some cases, no doubt, excessively) on the child rather than on the victim and society. This government is obsessed with imprisonment, and it doesn't even care whether or not imprisonment works. I don't trust Toews as far as I can throw him not to start buggering up troubled children's lives in new and more spectacular ways, especially given this money quote:

I'm sometimes provided with anecdotes about people coming to the court by age 12 and they've had a horrendous involvement with the police and other social agencies, but the courts have been unable to intervene.

Lord help us. I can see Lionel Hutz now: "Anecdotes are a kind of evidence, your honour…"

Amongst various hysterical counterarguments in today's papers ("Does he want the death penalty for them, too?" asked one Heather Perkins-McVey. "This concerns me that we're going back to the Dark Ages. Maybe we should have workhouses, too.") there was this incisive nugget:

Louise Botham, president of Ontario's Criminal Lawyers' Association, said Toews' suggestion begs the question of whether Ottawa is willing to pay for the treatment programs a child would be ordered to attend.

If such treatment programs are up and running, one might legitimately ask why it's necessary to route a child through the court system, Botham said.

"What kind of a magic is a judge going to have?" she said.

Toews seems to be suggesting the justice system is a "panacea" for society's problems, she said.

Seems, madam? Nay, it is. Judges have no magic to offer wayward children — only to placate jail-thirsty reactionaries. And to them I say: it's not just "ten-year-olds" Toews wants to fast-track into Canada's criminal academies. It's your ten-year-old, should he be exploited by criminals to do their bidding or more likely just do something uncharacteristically horrible one day without considering the consequences of his actions because… well, because he's ten years old.

If Toews wants to lower the age at which the justice system can begin the systematic demolition of a young life, while taking more and more judicial discretion out of the equation, the least he could do is make a non-anecdotal case that there is in fact a problem here that needs solving. After all, Canada's child welfare agencies are doing a pretty bang-up job demolishing young lives as it is.

Posted by Chris Selley at August 15, 2006 11:41 PM

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"the least he could do is make a non-anecdotal case that there is in fact a problem here that needs solving."

Whoa! You mean make an argument? With evidence and facts and shit? Come on. That's not going to happen. Don't you know facts don't matter, Ronald Reagan proved that in the eighties. Or was that deficits?

Posted by: wsam at August 16, 2006 10:54 AM

It always amuses me to watch people get completely hysterical about changes to the criminal justice system, so you'll forgive the rant.

We should note that the notion of those under 12 being exempt from criminal responsibility is a relatively new phenomenon: it wasn't until 1984 that the Criminal Code was amended to provide for this - prior to that, the minimum age for criminal responsibility in Canada was 7. Oddly, the Dominion managed to survive and the jails were not filled with hordes of 8- and 9-year olds. If we're going to get all bent out of shape about lowering the age, can we at least cite some evidence, somewhere, that it will result in "the demolition of a young life"? The general worldwide threshold appears to be around 7 years of age - so the criminal law of all those other countries (including those in western Europe) is "bordering on the barbaric"?

Secondly, if we're worried about "taking more and more judicial discretion out of the equation" (not always a bad thing, in my opinion, when the system has proven that it is almost literally incapable of sentencing repeat violent offenders to meaningful jail terms), then shouldn't we be in favour of Toews proposal? After all, the current system affords no discretion to judges whatsoever - they can't address those under 12 because they never get into the system. You rhetorically query "why even have youth justice then" - but that goes to the same point: the youth criminal justice system acts to fetter the discretion of judges when it comes to dealing with those between 12 and 18 years of age. If we're so confident that judges are going to make the correct sentencing decisions, why not have youths treated under the same rules as all other offenders? After all, the judges are going to get it correct... right?

Finally, I'm sure Dan Gardner is a wonderful person, but he seems oddly focused on only one aspect of sentencing, to the exclusion of all others: deterrence. And he always seems to punt the hard questions: he seems to be of the view that there is almost literally no deterrent effect whatsoever to incarceration, even going so far as to allege in his April 26, 2006 column that even specific deterrence (i.e., the incapacitation of a particular criminal, rendering them incapable of committing further crimes because they're, you know, in jail) is a fallacy - but he provides no evidence for this rather startling argument, other than saying it's "a big, complicated issue ... More on this in a future column." We're still waiting. Gardner claims in his May 15, 2006 that he thinks "in most cases today, serious criminals are seriously punished" - which would come as a surprise to almost anyone with even a semblance of familiarity with Canadian sentencing trends. In any event, "deterrence" is not the sole criterion by which sentencing should be measured - even the Criminal Code only lists it as one of six objectives.

Posted by: Bob Tarantino at August 16, 2006 11:14 AM

...it wasn't until 1984 that the Criminal Code was amended to provide for this - prior to that, the minimum age for criminal responsibility in Canada was 7. Oddly, the Dominion managed to survive and the jails were not filled with hordes of 8- and 9-year olds.

Fair point, Bob, but do you think we're close enough to 1984 - in terms of the country's legal and social climate - to blithely revert back? These changes aren't being made in a vacuum, right?

Btw, your thoughts on this would make for a great post at LIB. Yes, I'm still bitter you left, you rat bastard.

Posted by: Damian at August 16, 2006 03:54 PM

You guys are all confusing me here, this is too complex for me. All I know is the justice system fucking sucks - cops are patroling deserted CNE grounds and yuppie King West on horseback and not stopping real crime, and the courts don't seem to understand what it's like to have a lot of money stolen from you - fancy dancy lawyers and judges can afford protection that the rest of us can't. The whole system should be drastically overhauled. I despise our court and our parole systems.

Posted by: Jason B. Green at August 16, 2006 04:28 PM

Oh, you want to dance, eh, Brooks? Eh? Tough guy?

to blithely revert back?

Well, we're not doing exactly that - the proposal is for the threshold to be lowered by two years (to 10) not to 7. But in any event, with reference to the "legal and social climate", I'm not sure that sways the argument in quite the way you intend - or are you saying that, on average, 10 year olds in, say, 1980, were better or less able to tell right from wrong as compared to 10 year olds in, say, 2006?

Posted by: Bob Tarantino at August 16, 2006 04:41 PM

Nope, not what I'm saying at all. I'm wondering if the courts' ability to handle kids has changed, I'm wondering if the effectiveness of social programs that are supposed to support kids has changed, I'm wondering if what's considered acceptable by the kids themselves and their parents has changed. Heck I'm pretty close to wondering what hasn't changed.

Just because the courts could handle kids twenty-some-odd years ago doesn't mean they can, or should now.

Posted by: Damian at August 16, 2006 05:04 PM

And unless you and your dazzling partner have swapped bodies, no, I don't want to dance with you, Bob. Not that there's anything wrong with that...

Posted by: Damian at August 16, 2006 05:06 PM

I think 22 years ago is a pretty long time, Bob, and I do think the idea of locking up an eight-year-old or a ten-year-old in the same system as a 15-year-old is barbaric no matter how many countries do it. Toews is now adamant that his words are being misconstrued, but I will remain "hysterical" about this (if that's what I am) until (a) he rules out "jail" for 10- and 11-year-olds and (b) he stops acting -- and you seem to agree with him on this -- like it's somehow my job to make the case against his idea.

Posted by: Chris Selley at August 16, 2006 08:44 PM

I can understand your rejection of the idea of incarcerating those under 12, and desire to avoid "demolishing young lives" is an excellent basis for that position. But "22 years ago is a pretty long time"? I know that the country's continued to change and policy has to adjust with it, but if you're suggesting that we're wiser than they (we) were then, or that we're wiser than they were in 1500, for that matter, well you're, uh, wrong. And what's with "barbaric"? Such rhetoric sounds ... really 1950s (ha, a whole *half century* ago). (Plus, can you imagine the barbarians [whoever they may be] locking someone up for a long period of time for distributing drugs? Or being so inept in training the upcoming generation that they had to resort to bureaucracies, courts, or jailing?)

Posted by: Joel Kropf at August 16, 2006 10:21 PM

Why can't Toews be taken at his word when he says (as he did Tuesday) that "Young people who engage in criminal behaviour before the age of twelve need effective intervention and treatment... They do not need incarceration, nor have I suggested they do"? That sounds to me like "ruling out jail."

Posted by: Colby Cosh at August 16, 2006 10:48 PM

Mostly because he refused to rule it out yesterday, I guess.

Posted by: Chris Selley at August 16, 2006 11:49 PM

Oh, I wasn't saying *you* were hysterical - The Toronto Star? Yes. Heather Perkins-McVey? Yes.

In any event, there is still this odd hang up over "incarceration" - which is distinct from "jail": the latter is a particular facility in which incarceration occurs, the former is a strategy for punishment and harm reduction. "Incarceration" includes group homes, minimum security youth facilities - if you think a violent 11-year old should not be subject to some sort of incarceration in order to protect those around him or her (or the child him- or herself), that what exactly do you propose be done with them? Hugs? "Social spending"? That's all well and good in the long term, but what about this particular violent child right now?

I don't think Toews (or anyone else) is saying that you need to make the case against his idea, but in light of the evident outcry against the proposal, you'd think there would be some counter-proposal for dealing with the phenomena identified by Toews: violent crimes committed by those under 12. Unless you're arguing that the issue doesn't exist (which I don't think you're doing). As it stands right now, there is nothing that can be done. So what's the counter-propsal? Are we going to subject the kids to the tender mercies of the child welfare system? On what basis? They haven't committed a crime (under the current legislation). So how to justify state intervention in their lives? If you don't lower the age for criminal responsibility, there isn't the barest shred of a justification for placing them into, well, anything. What do you want to do - place them in psychiatric care? Again, on what basis? They haven't been convicted of a crime. Hell, it hasn't even been proven in a court of law that they even committed the thing they are accused of doing (because they can't be arrested, charged or tried). Proposals for changes in the law don't often spring up out of nowhere - they usually are a response to public concerns. If we don't think there's a problem here, try that argument; if we concede that there is, then there needs to be discussion of the alternative methods of dealing with it. I haven't seen anything yet.

Posted by: Bob Tarantino at August 17, 2006 09:22 AM

Sorry, I know this is tedious, but permit me one final point: we generally aren't in the habit of letting the Minister of Justice decide who gets incarcerated - that's left up to judges. And since the vast majority of the judiciary has shown that they are reluctant in the extreme to incarcerate even adult repeat violent offenders, I wouldn't spend too many worrying that they're going to throw the munchkins in the clink.

Posted by: Bob Tarantino at August 17, 2006 11:44 AM

Man, this is great reading... terrific stuff to ponder. I think BT really got me, especially on that 11:44am post...

Posted by: Jason B. Green at August 17, 2006 06:41 PM


As someone whose work is usually consigned to birdcages and fireplaces within a day or two, I'm thrilled to see you cite some of my old columns. I'm less thrilled at your characterization of them.

First, I quite understand that there are several principles and goals at work in sentencing. I relentlessly focus on deterrence only because that is what the tough-on-crime crowd routinely touts as the panacea for crime. I'll stop writing about it when Stephen Harper and Vic Toews stop talking about it.

Second, you mention what you call "specific deterrence" but is more accurately "incapacitation" -- meaning the crime-reduction value of simply having criminals locked up and so unable to commit more crimes. Yes, it is complicated (in a nutshell: The crime-reducing value of incapacitation is real but subject to rapidly diminishing returns, one reason why even a hawk like James Q. Wilson has criticized three-strikes laws as an inefficient allocation of resources).

However, I have written about it at considerable length in a huge series I published a couple of years ago. And I will again when it's relevant.

In the meantime, you can read about it for yourself in any criminology text, or simply Google incapacitation and diminishing returns: Believe it or not, I don't just make this stuff up.

Posted by: Dan Gardner at August 20, 2006 07:59 PM

If a particularly horrible crime is committed by an 11 year old, it makes sense to have the capability to put this type of person away, to protect society. Obviously, society wasn't protected the first time, so if there's no better/viable alternative, why not imprison?

Along the same lines. no more "house arrest", etc. To quote the Conservatives, "you so the crime, you do the time".

Sorry folks, but it's time to rebalance the pendulum swing of excessive (small-L) liberalism over the past 50 years.

Posted by: Erik Sorenson at August 21, 2006 10:37 AM

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