Youth Mental Health Diversion
On April 1, 2003, the Youth Criminal Justice Act came into force bringing with it a new phase in the management of adolescents who come into contact with the criminal justice system in Canada.(1) Although there have been some concerns in the past regarding the stigmatizing effect of youth dealings with the formal criminal justice system, the Law Reform Commission’s Working Paper on “diversion” defined four alternatives(2):
Community absorption: individuals or community groups deal with young offenders to the exclusion of the police and courts.
Screening: police exercise discretion to refer the incident to family or community, or decide to drop the case, or commence formal processing.
Pretrial diversion: after the commencement of proceedings, the prosecution refers a case to alternative measures at the pretrial stage.(3)
Alternative to imprisonment: the courts use their discretion to increase the use of alternatives to prison such as absolute or conditional discharge, restitution, fines, probation, community service orders, or partial detention in a community-based residence.(4)
In the third alternative above, pretrial diversion plays a conjunctive role as it also extends to low-risk youths whose mental health needs require it. These young offenders are screened for what is known as ‘mental health diversion’ and court support services, and diverted from entering the criminal justice system.(5)
In June 2005, the Mental Health Court Support Consortium released a framework of policies and procedures.(6) Although the Crown Attorney makes the final decision about approval into the mental health diversion, the criteria for acceptance has been outlined by this framework as follows:
“The individual is suffering from a serious mental health impairment such as schizophrenia, bipolar affective disorder or major depression. However, this does not necessarily preclude diversion for individuals who have been diagnosed with other disorders. The individual has been charged with a relatively minor offence. The individual and the MHCS & S staff member must agree to work together toward mental health diversion. Mental health diversion is a voluntary program and at any time in the process, the individual may choose to proceed through the conventional criminal justice system. Staff members have discretion about who is an appropriate referral for the services. Where a plea of guilty has been entered, mental health diversion cannot be completed. And, the individual must be out-of-custody.(7) Some of the possible outcomes for the mental health diversion processes include: Stay of Proceedings, Withdrawal and Peace Bond. The youth will not have a criminal record, although a stay and a peace bond are not finalized until one year has passed for good behaviour.(8)”
In September 2010, Bill C-4 Sebastian’s Law was proposed, and if passed by Parliament, would amend the Youth Criminal Justice Act. The bill proposes to hold violent young offenders, and those that might be violent, accountable for their actions.(9) Further, it would ensure that the protection of society is considered upon sentencing by making protection of society a primary goal of the Act. In addition, adult sentences would be considered for youth, 14 and older, who commit serious violent offences (murder, attempted murder, manslaughter and aggravated sexual assault) and would require the courts to consider lifting the publication ban on the names of young offenders convicted of “violent offences,” when youth sentences are given.(10)
Generally, the pendulum has swung to the other side, as the present YCJA recognizes that young persons often lack judgment and maturity; the Act recognizes that the long-term goal of rehabilitation is more important than penalizing and simply detaining. It is submitted that the new Act will be the subject of Constitutional challenges.
(1) s.c. 2002, c. 1 [YoA, or Act].
(2) Law Reform Commission of Canada, Diversion (Working Paper No. 7) (Ottawa: Queen’s Printer, 1975) at 1.
(3) See N. Bala & H. Lilles, The Young Offenders Act Annotated (Don Mills: De Boo, 1984) at 17.
(4) Bolton, Janet, and Jane Caskey, Suzanne Costom, Richard Fowler, Sivan Fox, Kirsten Hillman, Matthew Taylor, Rhonda Yarin, The Young Offenders Act: Principles and Policy- The First Decade in Review (McGill: 1993, 38 McGill L.J. 939).
(5) Government of Ontario. A Program Framework: Mental Health Diversion/Court Support Services (Ontario: Queen’s Printer for Ontario, February 2006)
(6) The Mental Health Court Support Consortium. Mental Health Court Support and Services Policies and Procedures, First Edition (June 2005).
(9) House of Commons, 40′h Parliament, 4th Session. Brief to the Standing Committee on Justice and Human Rights. Bill C-4 Sébastien's Law: An Act to Amend the Youth Criminal Justice Act and to Make Consequential and Related Amendments to Other Acts. Presented by the Canadian Criminal Justice Association (September 1, 2010)