New youth justice act sends mixed message

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Ryan McMahon, 25, is a youth worker at the Native Canadian Centre of Toronto. The centre provides community-building cultural and recreational programs.

Multi-colored paintings cover the walls and there is a hustle and bustle of people running towards the gym, looking for athletic activities.

There is a vibrant and welcoming atmosphere in the air. But the young Aboriginal man who had agreed to talk with this writer about his experiences with the justice system hasn't shown up.

McMahon doesn't seem surprised and says there is still anger in the Aboriginal community. Many would rather not talk to the media.

"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."

In Western Canada, Aboriginals make up 20 per cent of the youth population, but represent almost 70 per cent of youth in jail. Aboriginal youth offenders are more likely to receive a custodial sentence than non-Aboriginal youth.

According to 1997/98 statistics from the Canadian Centre for Crime and Statistics, Aboriginal youth comprise about five per cent of Canadian youth, and accounted for 34 per cent of male young offenders.

Back at the Native centre, McMahon takes a moment to think about the new act's provision. Traditional Native chanting is heard from the floor above. Several seconds pass as McMahon sits pensively without uttering a word. He removes his watch and silver rings and places them on the table nervously.

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

He recounts an incident at the centre that demonstrates that some don't seem to take alternative measures seriously. He was bothered by some homeless Aboriginal men, who were laughing at someone who had to sit with a council of Elders in a sentencing circle.

"It bites my ass that they were laughing about it," said McMahon.

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 at all. 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 custoy 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.

As the activities at the centre end and people start drifting out of the building, the building grows quiet. McMahon puts his rings and watch back on. He says he hopes the law won't be necessary 30 years from now.

"There is a (Native) teaching called the "seven generations" that says the seventh generation will bring healing and new life to our people. If you look at the history, the seventh generation is here. It's my generation."