The Challenges of Youth Justice in Rural and Isolated Areas in Canada

4. Results (cont'd)

4.Results (cont'd)

4.3 Impact of problems on the youth justice system

The way in which the criminal justice process works in rural and isolated areas is critical to the delivery of a fair and effective youth justice system. Some of the process issues explored in the research are bail hearings, pre-trial detention; defence counsel; diversion and sentencing options.

4.3.1 Bail hearings

  • in isolated and some rural areas, infrequent court hearings affect where and when bail hearings can be heard;
  • in Newfoundland, if a youth is arrested in St. John's, he/she receives a hearing the next day; if in Labrador, it could be a week before the bail hearing - Labrador has only 2 courts which go on circuit once every 2-3 months; [2]
  • in remote areas of British Columbia , bail hearings may be done on the phone and involve RCMP and Crown (and perhaps duty counsel in Vancouver ), but this can take the reality and seriousness out of it for the youth. Probation is not always included, which means that bail options are not discussed. If a probation officer is involved the officer will not travel to interview the family so the decision is not necessarily based on the full information;
  • court locations are centralized in most provinces (such as Manitoba ) so there is a problem with rural and isolated youth securing transportation, and receiving required information quickly. Many do not have phones so it is often difficult to reach parents;
  • a respondent in the NWT noted that, except where circuit courts are involved, the court process, in general, has shorter delays than in southern Canada ;
  • there may be no Justices of the Peace within a reasonable distance;
  • youth may spend more time in custody because of longer waits for hearings;
  • distances (in British Columbia , for example, from Hazelton to Smithers, where the hearing is held) may be too costly for families to sign for youth;
  • small communities often have trouble finding someone to monitor bail;
  • lack of housing options, lack of parental support, parents who "give up quicker" because they are used to bad situations - all these influence bail decisions; parents with more education and who are employed are more likely to become involved and help their children;
  • in rural British Columbia , the single biggest challenge is the availability and appropriateness of a bail hostel as an alternative to custody;
  • probation officers may have to work harder to find a responsible adult where families and communities suffer serious alcohol and other problems.

4.3.2 Pre-trial detention

Due to lengthy distances and lack of resources, youth from rural and isolated areas may be kept in detention in far-away urban centres and for longer periods of time than would be the case for urban youth. There are typically no programs for youth in pre-trial detention so it is an often a negative experience, and for Aboriginal youth it can be a foreign and extremely distressing experience.

For these reasons, the majority view was that pre-trial detention is in fact used as sparingly as possible, especially in remote and isolated areas. In many remote areas there is a concerted effort to keep youth out of pre-trial detention unless remand is absolutely essential; in all of Nunavut , there is only one youth detention centre, in Iqaluit, so a particular effort is made to keep youth out of detention.

However, in those cases where youth are detained in remand, the following problems were noted:

  • in smaller areas, there is more use of police lock-ups in local communities, but lock-ups tend to be unhappy and frightening places; in British Columbia , local cells may be used only for short-term detention to prevent long hours of travel to detention centres;
  • cultural shock for youth because they cannot interact with family;
  • in rural areas, offences are frequently against family members, and there are no alternative housing options for the youth. As a result, pre-trial detention is more likely.

4.3.3 Availability of defence counsel

The availability of defence counsel seems to be largely dictated by geography, but was generally considered a less serious problem than other process-related issues. The exception was in jurisdictions such as Nunavut , where the circuit court is required to cover 24 communities and there are few legal aid or other lawyers in the territory. The dependence on legal aid was also more acute in poorer communities where parents were less likely to be able to afford a private lawyer. Some of the other comments made and effects noted by respondents were:

  • the "spotty" availability of legal aid services;
  • lawyers are only available the day of circuit court so there is limited time to prepare or meet with clients;
  • legal aid lawyers have very large circuit court caseloads, and workloads and travel often "burn them out";
  • turnover among lawyers present problems of availability and continuity;
  • there is little choice of legal counsel; some will not take cases that involve extensive travel;
  • sometimes there are no members of the local defence bar who will do legal aid work;
  • delays occur because defence counsel may seek adjournments for lack of preparation time;
  • dedicated defence counsel are needed for serious cases, but this is not always possible;
  • small town practitioners may not have the same level of specialized legal expertise. Since such practitioners are sometimes contracted to act as Crown counsel, this may leave offenders without local defence counsel to draw on;
  • problems are experienced in getting quick access to counsel at arrest;
  • there is a community perception that lawyers who take legal aid cases are less competent lawyers.

4.3.4 Availability of diversion program options

Smaller rural and isolated communities simply do not have the structures in place to deliver diversion services even though they may have the potential for community sanctions. However, it is often hard to find contract workers for community supervision due to the low volume of cases. Even where there are some structures in place, these may be limited and there is not a clear sense of who is in charge of them.

  • generally fewer opportunities exist in rural and isolated communities for restorative options;
  • "in between cases" (i.e. less violent cases needing something between diversion and custody) are the main "problem" cases in terms of a lack of alternatives;
  • where community options exist, less serious offenders are the preferred clientele;
  • in some provinces like Saskatchewan , there are many diversion programs but considerable variance in terms of quality;
  • in Newfoundland , most of the province is not covered by alternative measures although 32 programs exist;
  • volunteers are stretched or, in the case of remote areas, there are few people who qualify as volunteers;
  • youth may have long distances to travel to diversion program;
  • some diversion programs are run by police, others by the community;
  • one Alberta respondent said "diversion is pretty active in rural areas - that's how police manage justice in rural areas." He also said that Youth Justice Committees (YJCs) have had "fairly good success," although many start out being too punitive and have to be "reined in";

In some jurisdictions ( Manitoba , Alberta , NWT) there are community justice committees in extensive use. [3] Nova Scotia has a comprehensive and flexible restorative justice program than operates in urban and rural areas (see Innovations section).

4.3.5 Sentencing options

There was general agreement about the preference for recommending community options over custody in pre-disposition reports. However, fine options, monitoring of conditional sentences and community service orders are a challenge because of the difficulty in contracting for community supervision work.

Some communities have programs that present a viable sentencing option for the courts, while others do not. For example, in British Columbia , some communities such as Hazleton and Smithers have an Aboriginal justice system, Unlocking Aboriginal Justice , whereas other rural and isolated Aboriginal communities in British Columbia and elsewhere do not. When asked about the availability of sentencing options, one respondent simply said, "We are at the mercy of the judiciary," meaning that there are so few options there is little to put before a judge.

The lack of viable sentencing options may leave judges with a single option - the one, it was noted, that "cannot refuse any client" - jail. One Prairie respondent said "sometimes it seems a kid gets put in custody because that is the option most likely to hook him up with services." Another respondent, from British Columbia , said that because there is often no Intensive Support and Supervision Program (ISSP), and fewer non-justice programs like alcohol and drug treatment, there are more custodial sentences.

Some of the other sentencing option comments include:

  • judges tend to leave it up to corrections to see how to provide services and may not consider if sentencing is feasible; often imposing conditions that cannot be enforced;
  • rural and isolated areas, in particular, tend to have fewer options for community based sentences, especially if involving violent or sex offenders, so it may become necessary to remove youth from the community to receive outpatient or residential treatment;
  • in Labrador, Nunavut and other remote areas, where there are few sentencing options, there is still considerable reluctance to remove youth from the community, so secure custody is less likely except in very serious cases; in Newfoundland, only Cornerbrook and St. John's have detention facilities;
  • in Nunavut , one respondent said that recent reforms to probation have been tremendously successful. Concerns about the former system of delivering probation through social workers employed by the Health Ministry to conduct a wide variety of services led to the creation of separate probation officer positions, which are better paid and have attracted the "cream of the crop" of workers.

Where sentencing options do exist, the general consensus was that some work, some do not, and much of their success (or failure) depends on the community and whether the option is seen as worthwhile. Diversion and other alternatives are similarly viewed by communities.

4.4 Impact of problems on individual offenders and victims

A NWT respondent commented that in smaller communities everyone knows who commits the crime but without an appropriate criminal justice response, the message is conveyed that it is "OK to commit crime". In addition, youthful offenders' issues may not be dealt with and victims are left with the sense that nothing results from the process. This is seen as an on-going problem for rural and isolated communities.

Respondents made a number of other observations about offenders and victims, which are presented, in the following two sub-sections.

4.4.1 Reintegration and rehabilitation of offenders

The matter of resources and other issues of rural and isolated areas are so profound and entrenched that keeping young people out of the system, while still providing a sustainable process to meet their needs, is a continuing challenge. The inability to process cases in a timely manner means those accused are often left waiting; less access to diversion and other alternatives means that few opportunities for re-integration exist. Although several jurisdictions are developing community approaches such as family group conferencing, youth in rural and isolated areas continue to lack the reintegration options available to urban youth. The other serious impediment to offender rehabilitation in these areas is the lack of specialized programs to deal with their needs.

Some of the common offender issues are:

  • because of difficulties getting to court, accused are often late and court dates are missed;
  • accused may choose to plead guilty rather than travel back and forth;
  • for offenders leaving custody, it is difficult to provide follow-up services, which may result in higher recidivism;
  • youth may be barred (by court order) from returning to home communities because of victim fears (especially in Aboriginal communities) and lack of resources to treat them. As a result, youth go to cities and may start a downward spiral;
  • in small communities, nothing is confidential so it is more difficult to get placements for youths, resulting in more labelling and more awareness of who has a record. Under these conditions, it is more difficult to achieve reintegration and rehabilitation -- once a person is identified as an "offender" he/she is always an "offender";
  • youth may have to go to a different community where services are available making it difficult to be reintegrated into their own community;
  • similarly , youth who are sent away for services suffer from lack of contact with their families.

4.4.2 Identifying and responding to needs of victims

The challenges and barriers affecting youth justice in rural and isolated areas may be most profound for victims. Due to geographic distance and the lack of services and resources, victim needs are often the last to be serviced. Timely and culturally appropriate supports for victims are especially absent in isolated communities. This creates a general cynicism about the justice system.

Some of the commonly mentioned victim issues are:

  • victims are asked for input in pre-disposition reports but RCMP-based victim services are too far away to access;
  • there is a lack of agencies such as the Elizabeth Fry and John Howard Societies to provide victim services;
  • where there are no separate victim services, a conflict situation is created for probation officers who are expected to deal with offenders and victims;
  • for people in remote areas, it requires a major effort to access diminished services, especially in cases of sexual assault where there are waiting lists and it is difficult to come to multiple sessions of a program;
  • small communities are often made up of three or four family groups with considerable antagonism among clans or groups - especially if the incident involves break and enter or assault and the victim's whole family suffers shame and anger;
  • for the powerless in the community, there is difficulty accessing victim counselling services;
  • in small communities victims continue to see the offender and this exacerbates the sense of disillusion if needs are not met;
  • a respondent in one of the territories noted that there is "huge pressure on victims not to report offences to police. [I] heard the mother of one of 5 young female assailants who had severely beaten a 14-year-old girl threaten the victim's mother right in court: 'If you ever call the police on my daughter again, you'll get it;'"
  • in rural areas, courts and other services and community are not set up to keep victims and offenders apart;
  • where no victim services exist, victims simply are not well prepared.

A comment made by one respondent was that the traditional court system is not what victims want and if there is no diversion in place to give victims a louder voice, they remain unsatisfied. The problem is exacerbated when court occurs in an isolated community and the accused wants to plead guilty at first appearance and the judge wants to sentence, because the circuit court will not be back in the community for a while. The victim simply loses out unless a victim impact statement has been prepared, which is unlikely without the support of victim services.

4.5 Similarity of problems in all rural or isolated communities

While there is a wide spectrum of communities that fall within the definition of rural, there is also considerable diversity among them in terms of levels of poverty and community well being. However, despite the diversity, all rural communities seem to share problems related to lack of resources.

According to respondents, the factors that account for the differences in barriers and challenges among rural or isolated communities are:

  • The geographic proximity of the community to an urban area;
  • The socio-economic well-being of the community;
  • The location and frequency of circuit court hearings (in the case of isolated communities);
  • The lack of quality control over matters such as the selection and training of workers and restorative justice alternatives, which can produce considerable variation in the quality of the response to problems.

One respondent summed up the diversity quite simply when he said: " The greater the isolation, the greater the vulnerability and lack of services ". Another said there are no strong regional centres in her province - one town will have a hospital and the next will have a school - however, they are slowly trying to do more consolidation of services because of the difficulty supporting all the small towns. She claimed that people are used to shopping a long way from where they live, so will do the same for services.

There was noted variation in Aboriginal communities that were not always related to geography and distance from urban areas. Local administration, power structures, infrastructure and general cohesiveness all influenced the capacity and willingness of communities to deliver youth justice services. However, delivery of non-culturally appropriate services by non-Aboriginals can also differentiate Aboriginal communities from one another, and from non-Aboriginal rural and isolated communities. On the more positive side, one Alberta respondent noted that Aboriginal communities usually have a contact to tie into such as a worker or band representative, but non-Aboriginals do not, so in some cases, Aboriginal offenders and victims have more resources.

An interesting similarity noted by several respondents was that justice is brought to the community by people who do not live there, and with little accountability to the community. Court is seen as a business rather than something that affects the fabric and future of the community.

4.6 Impact of the Youth Criminal Justice Act o n existing challenges and barriers

The new Youth Criminal Justice Act (YCJA), which was passed on February 4, 2002 , and proclaimed in force on April 1, 2003 , was designed to overcome and address some of the weaknesses in the Young Offenders Act . It contains statements regarding the values upon which the legislation is based. These include the developmental needs of young persons, the need to take victim interests into account, and the role of communities and families in roles related to crime prevention, addressing the needs of young persons and providing guidance and support. Diverting less serious cases from the system and emphasizing rehabilitation and reintegration are also given greater emphasis in the legislation.

Eliciting perceptions about the degree to which respondents believed the YCJA would "address the challenges and barriers identified" above, was important to the research process. Due to the timing of this research (i.e., during the implementation phase of the new legislation), it was necessary to identify those issues that may be addressed by the YCJA .

Most of the respondents indicated that they supported the principles behind the new legislation, including the need for communities to take more responsibility for addressing the youth crime problems in their midst. Indeed, several respondents suggested that they were already using a community-based approach and that the new legislation would change little in that respect.

Others, however, suggested that the use of further community-based approaches would create challenges in their communities. According to some respondents, there is an inherent assumption in this approach that all communities had an equivalent capacity to create effective indigenous solutions, and unfortunately that may not be the case. The majority perception among respondents, in fact, was that without a significant infusion of resources into rural and isolated areas, there would not be substantial change. Other respondents suggested that they might be forced to take on larger numbers of the youth who previously had been dealt with in other ways, and who present more serious needs and greater risks to the community.

There was also a general belief that the challenges and barriers to delivering youth justice in rural and isolated communities are so complex and entrenched that legislation alone is unlikely to address them. The main concern is that there is an emphasis on maintaining young persons in the community and releasing them from custody sooner, but the current lack of capacity and resources in the communities will be problematic. In addition, because the community development processes, which would be needed in these communities, are challenging and also require dedicated resources for their development, reform efforts may be stalled.

In some, primarily Northern communities, a particular concern was raised relating to the appearance of "nothing being done" about youth crime. In such communities, where victims and offenders see each other on a daily basis, any impetus which furthers the perception that there are no meaningful consequences for youth would create a concern around support for the system and community resentment towards offending youth.

A Newfoundland respondent concluded that the "YCJA expands options but it also makes the community take a stronger role and if communities can't deliver, it will be a problem." Another said, "The YCJA doesn't change [the] fabric of community."

On the positive side, one rural respondent felt that the criteria for the use of custody at bail and sentencing will stimulate the development and use of alternatives to custody and may even disproportionately benefit small communities. But he did not believe the legislation should be expected to reduce crime, and said "holding legislation responsible for rising crime is like holding an umbrella responsible for rainfall." Several respondents believed that the new legislation would result in deferred custodial orders and conditional sentences, and more intensive supervision orders.

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