Youth justice act controversial

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Ryan McMahon, 25, is a youth worker at the Native Canadian Centre of Toronto.

"I focus on identifying youth who have instant anger towards the system," said McMahon. "We've gotten over the hump and are intelligently addressing the issues."

The Youth Criminal Justice Act (YCJA) is one such issue that concerns the Native community. The act was passed through Parliament in February to replace the Young Offenders Act. This act now includes a Senate amendment that permits judges to consider alternative punishments to imprisonment, and consider the life circumstance the offender has come through.

The Aboriginal Legal Services of Toronto, along with six other Canadian Aboriginal organizations, proposed the amendment to Senate.

Section 38 (2)(d) of the YCJA now states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

McMahon said, "It's sending a mixed message almost to say that 'We know you have it rough, and we'll give you an easier way.'"

So is the law even necessary?

"On a general scale, if the alternative justice system still holds the young person accountable, and if there are punishments and appropriate terms of dealing with them, then yes, it's needed," said McMahon. "The last place a young Aboriginal wants to be is within the system."

But Richard Barnhorst, senior legal counsel for the Canadian Department of Justice, believes that the special provision isn't needed . According to Barnhorst, the Youth Criminal Justice Act already covered the issue.

"The provision is consistent with what was in the YCJA," said Barnhorst.

Aside from the provision, the YCJA already states that the needs of Aboriginals should be considered and respected. Also, the law states that all alternatives to custody should be considered.

However, not everyone agrees that this is enough to help steer Aboriginal youth away from having to do time.

Jonathan Rudin, program director of the Aboriginal Legal Services of Toronto, is one of them.

"[The laws in the YCJA] were not sufficient for Aboriginals to get full protection," Rudin said. "Aboriginal youths are often charged [and sentenced] more severely."

For example, Section 39(a) of the YCJA states that a young person shall not be committed to custody unless they have committed a violent offence. Currently, 80 per cent of the imprisoned Aboriginal youth in Western Canada are in jail for non-violent crimes.

He also said that the decision whether an Aboriginal person is charged with a crime or not is often made by police officers, Rudin said.

McMahon agrees and hints that the relationship between police officers and Aboriginal youth is a troubled one.

But Aboriginal youth have more to concern themselves with than law enforcement.

According to McMahon, a lot of reserves don't have schools and on those that do, school buses are unavailable. A lot of the Aboriginals he sees coming into the city are running from the reserve system.

Rudin oversees the Aboriginal Legal Services, which deals with clients who are adopted or who are in foster care and have very dislocated lives.

"The practical reality is that we need the new law," said Rudin. "Judges need to know the details of Aboriginal lives and the available (sentencing) options...and need to be creative about their alternatives," explained Rudin.