Cross-Over Youth and Youth Criminal Justice Act Evidence Law

Cross-Over Youth and

Youth Criminal

Justice Act

Evidence Law:

Discourse Analysis and Reasons for

Law Reform

R E B E C C A J A R E M K O B R O M W I C H

ABSTRACT

Adolescents who are involved with child welfare systems, either in foster

care or under child welfare supervision, across Canada, disproportionately

“cross-over” to youth criminal justice proceedings. Virtually all have grown

up in poverty; many are racialized or Indigenous; all are marginalized. As

youths, and later as adults, they are proportionately more often charged,

found guilty, and incarcerated relative to youth who are not or have not

been "in care.". This article critically considers disadvantages “cross-over”

youths face under the YCJA. It provides a new, theoretically engaged

understanding of how dangerousness and criminality are constructed in

official discourses for cross-over youths. It argues that YCJA evidence law

compounds the disadvantage of cross-over youth, who are already socially

excluded, setting them up for disproportionate criminalization and

incarceration. Both with respect to their statements and to documentary

records about them, cross-over youth are vulnerable under Criminal

Evidence law in ways that youths who reside in their families of origin are

less likely to be. Systemic change to child welfare law and policy to focus on

early interventions preventing apprehensions in the first place should be

promoted. Further, as an interim and partial solutions, this “cross-over”

should be addressed through changes to evidence law under the YCJA. We

need to revisit the appropriateness and implications of explicit and implicit

PhD, LL.M., LL.B., faculty member with the Department of Law and Legal Studies at

Carleton University, lawyer member of the Bar of Ontario since 2003, and former

“cross-over” youth.

266 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

assumptions -running throughout youth criminal justice processes and

protections – that a youth before the Court will be able to draw upon

parental support.

Keywords

outh justice; evidence law; child protection; children’s rights;

discourse analysis; Indigenous people in the criminal justice system

I. INTRODUCTION

n Canadian prisons, we are locking up large numbers of marginalized

people, and Indigenous people in particular. It is abundantly clear from

Statistics Canada data that levels of adult incarceration in Canada

remain high. There are massive increases, since the 1960s, in the

proportional incarceration rate of Indigenous people, who make up roughly

25% of the prison population, but less than 5% of the Canadian population

overall.

We also have overburdened criminal courts marred by delays,

which can result in the dismissal of serious charges.

While there are well-

documented problems with discrimination in the criminal justice system

itself, ways in which formal legal discourses are contributing to the problem

of over-incarceration of persons from Indigenous and other marginalized

groups do not start and end in the criminal justice system.

A crucial entry point of marginalized individuals, and especially

Indigenous children and youth, into the criminal justice system, is through

the “protective” services provided by provincial and territorial child welfare

systems where children are deemed at risk of harm. Relative to other

countries, Canada takes proportionately higher numbers of children into

protective care.

It is especially salient for this law journal to consider the

disadvantages faced by children and youth in state care, being as it is the

Manitoba Law Journal, and Manitoba has the highest per capita rate of

Statistics Canada, Adult and youth correctional statistics in Canada, 2016/2017, by Jamil

Malakieh, Catalogue No 85-002-X (Ottawa: Statistics Canada, 19 June 2018, online:

<www150.statcan.gc.ca/n1/en/pub/85-002-x/2018001/article/54972-

eng.pdf?st=NheG_hDv> [perma.cc/T3AC-U228].

Problems with delays in the criminal justice system were made painfully obvious after R

v Jordan, 2016 SCC 27.

Brownell, Marni et al, The Educational Outcomes of Children in Care in Manitoba,

(Manitoba Centre for Health Policy: June 2015), generally and at 1, online (pdf):

<mchp-appserv.cpe.umanitoba.ca/reference/CIC_report_web.pdf> [perma.cc/VD2E-

GDE5].

Cross-Over Youth 267

children and youth in care in Canada.

Research and attention should be

paid to the glaring disproportion whereby 90% of children in state care in

Manitoba are Indigenous.

Statistical study of outcomes for children apprehended into Canada’s

provincial and territorial child welfare systems reveals that, too often, being

taken into child “protection” in fact leads youth into abuse, criminalization,

drug addiction, and early death. Indeed, what Indigenous Affairs Minister

Jane Philpott has called a “humanitarian crisis” in the child welfare system,

with a crushing disproportion of Indigenous children being taken into state

care.

Philpott, in November 2018, announced there would be pending

changes to the state care of Indigenous children, promising to hand the

management of that care over to Indigenous governments.

However, at the

time of writing, the precise nature of the coming changes, and any

timeframe for their implementation, remain unclear.

Statistical research provides a damning indictment of the life chances

of children taken into care. A recent BC study demonstrates that a child in

the care of social services in that province is more likely to end up in jail

than to finish high school.

Sixty percent of homeless youth become

homeless by leaving foster care.

Worse still, a BC Coroners’ Death Review

Panel found that youths transitioning out of state care were five times as

According to the Manitoba Department of Families, Annual Report, 2017-2018, online

(pdf): <www.gov.mb.ca/fs/about/pubs/fsar_2017-18.pdf> [perma.cc/7LD3-HSV8],

there were 10, 328 kids in care in 2018, which was 3.6% less than the prior year, the

first time the numbers of youth and children in care in Manitoba had dropped in 15

years.

Manitoba Legislative Review Committee, Opportunities to Improve Outcomes for Children

and Youth (September 2018), online (pdf) <www.gov.mb.ca/fs/child_welfare_reform/

pubs/final_report.pdf> [perma.cc/SMM6-6SQ3] at 1, 4.

Katie Hyslop, “How Canada Created a Crisis in Indigenous Child Welfare”, The Tyee

(9 May 2018), online: <www.thetyee.ca> [perma.cc/X5FN-7K5M].

See e.g. John Paul Tasker, “Ottawa to hand over child welfare services to Indigenous

governments” CBC News (30 November 2018), online <www.cbc.ca/news/politics/

tasker-ottawa-child-welfare-services-indigenous-1.4927104> [perma.cc/GVH8-L8F9].

British Columbia, Representative for Children and Youth & Office of the Provincial

Health Officer, Kids, Crime and Care: Health and Well-Being of Children in Care, by Mary

Ellen Turpel-Lafond & Perry Kendall (23 February 2009) at 7, 12 [Turpel-Lafond].

Stephen Gaetz et al, Without A Home: The National Youth Homelessness Survey, (Toronto:

Canadian Observatory on Homelessness Press, 2016) at 47.

268 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

likely to suffer premature death, primarily from suicide and drug overdoses,

than members of the general youth population.

This paper critically considers ways in which the operating logics of

child welfare law produce official documents that in turn construct system-

involved youths as dangerous, criminal figures. It interrogates how those

documentary records, and so those constructions, intersect with the rules of

evidence in youth criminal justice, thereby crucially contributing to their

criminalization. It looks at how governmentality, or the intersection of

power and knowledge in discourse through the organized practices of

‘governmental rationality,’

or systems or ways of thinking about how

conduct should be conducted, operates through the ways youths in care are

defined and described in the official discourses of child welfare and criminal

records and police charge synopses.

I look critically at a pathway through which those incarcerated in

Canada frequently first arrive there. As is discussed below, a

disproportionate share of people incarcerated in Canada are under the care

and custody of child welfare authorities when first taken into correctional

custody, in the youth or adult system. The “Cradle-to-Prison Pipeline”

is a

major problem precipitating a disproportion of vulnerable, poor,

Indigenous and racialized youths from state care into the criminal justice

system, and finally into prison.

This paper combines an analysis of evidence law under the Youth

Criminal Justice Act

with critical consideration of how child welfare systems,

in their bureaucratic operating logics, construct “cross-over” youths as

dangerous criminals in court records. This explores factors contributing to

the over-representation of cross-over youth in the criminal justice and

correctional systems, including fragmentation between systems, the

construction in discourse of youths in care as a dangerous “type”

as an

British Columbia, BC Coroner’s Death Review Panel, Review of MCFD-Involved Youth

Transitioning to Independence January 1, 2011 – December 31, 2016, (Victoria: British

Columbia Coroners Service, 28 May 2018) at 3, 11.

Michel Foucault, “Governmentality” translated by Rosi Braidotti in Graham Burchell,

Colin Gordon & Peter Miller, eds, The Foucault Effect: Studies in Governmentality,

(Chicago, IL: University of Chicago Press, 1991) 87.

Mary Wright Edelman, “The Cradle to Prison Pipeline: An American Health Crisis”

(2007) 4:3: A43 Preventing Chronic Disease 1 at 1.

Youth Criminal Justice Act, SC 2002, c 1 [YCJA].

An especially salient discussion of how language and discourse are important elements

of how people end up being labeled and otherwise understood as criminal is provided,

Cross-Over Youth 269

incident of particular forms of bureaucratic governance, and a disconnect

between the needs of youths in care for procedural protections in criminal

justice processes and their ability to access practical advocates with the

potential to help them realize their rights. We need to change the way we

interact with vulnerable youths across many systems.

From this analysis, I ultimately argue that change to child welfare

systems should be combined with changes to evidence law to remedy this

situation. Evidence law, under s.146 of the YCJA and elsewhere within the

Act should neither explicitly nor implicitly assume the presence of

benevolent, involved parents in the lives of the youths subject to it. To deal

justly with youthful accuseds, the YCJA should open up possibilities for

meaningful justice for those already disadvantaged by their inability to

access the privilege and support generally provided by a family home.

This article focuses on youthful accused who are taken into the

protective care of the state and looks at current developments in the law

regarding how youth in care are impacted differently from others by the way

evidentiary protections are offered under the YCJA. I critically inquire into

whether evidence law, as it pertains to youth, specifically through the YCJA,

the Charter of Rights and Freedoms, the Criminal Code, and the Canada Evidence

Act and its protections specifically in relation to children and youth

adequately address the situations of cross-over youth. As written, the Youth

Criminal Justice Act, Canada’s law governing criminal proceedings against

youths aged 12-17, not only implicitly assumes the presence of parents in

the lives of youths subject to its operations throughout, it makes the

assumed involvement of these parents explicit in certain sections. This

assumption is troubled by the disproportionate involvement of system-

involved youths in YCJA proceedings: while some of these youth may have

parents who participate, those parents are disadvantaged if they do try to

become involved in any event. It suggests that law reform should be

undertaken to remedy the disproportionate over-criminalization and over-

incarceration of “cross-over” youth and that the appropriate reforms should

not just be made to criminal law but also to child welfare law and policy.

When adolescents under the supervision of provincial and territorial

child welfare authorities come before the youth criminal justice courts as

for example, by Heather Shore, in Heather Shore, “Reforming the Juvenile in

Nineteenth and Early Twentieth Century England” (2011), 197 Prison Service Journal

270 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

accused, they too often lack practical advocacy support to be able to realize

their due process rights. At the same time, youths in care are, by virtue of

bureaucratic systems of governance in operation in care settings, likely to be

constructed in documentary records in ways that are highly prejudicial if

admitted into court proceedings. This is especially true when the residential

care setting is group care. This paper specifically considers a particular

dimension of the ramifications of being “in care” to youth, and that is the

absence of practical advocates.

This paper combines critical consideration of doctrinal law with critical

discourse analysis to explore how available evidentiary protections set forth

under the YCJA, Youth Criminal Justice Act, S.C. 2002, c.1 compound the

disadvantage already faced by cross-over youth by relying upon the protective

presence of a parent or adult in responsibility. I explore how cross-over

youth frequently have no access to a parent or guardian willing to

meaningfully step forward to protect their rights in a manner comparable

to that of a parent. This absence, coupled with the ways they are understood,

defined, and labeled, or, put another way, the presence of their construction

in the discourses of official child protection and other official texts as a

“type” that is dangerous and criminal, is a crucial intersecting point that

produces their criminalization. In consequence, I argue that youth in care

should either be afforded advocacy support through the child protective

systems which have care of them or should be provided additional

evidentiary protections under the YCJA to those afforded to others, such as

an amplified right to counsel.

II. CROSS-OVER YOUTH

“Cross-over” youth are minors who are involved with child protection

and the youth criminal justice systems. They are also commonly referred to

as “dually involved” youth.

Across Canada, under its Provincial and

Territorial regimes for child protection, large numbers of children and

youth are apprehended from their family homes and taken into “care” for a

variety of purportedly protective reasons, on the bases of legal tests set forth

under provincial and territorial laws. The “protection” they receive once

David Altschuler et al, Supporting Youth in Transition to Adulthood: Lessons Learned

from Child Welfare and Juvenile Justice, (Centre for Juvenile Justice Reform, 2009) at

26.

Cross-Over Youth 271

apprehended has been cited by a great deal of research as problematics

There are many issues with funding, appropriateness of placements,

exploitation, neglect and abuse within the foster care and group care

placements across the country. Problems with child welfare systems are

underscored and compounded by the fact that youth in care are

disproportionately of African-Canadian and Indigenous heritage. A 2015

study, for example, of kids in care in Toronto, found that nearly half of

them were of Black heritage, while the Black population of Toronto was in

the neighbourhood of 8%; while these numbers decreased to 37% in 2017,

the disproportion is still staggering.

According to Statistics Canada,

Indigenous children and youth make up roughly half of the minors who are

in state care across Canada, while they comprise less than 8% of the youth

population.

Young people (under age 18) living under the supervision or care of a

child welfare system who are also entangled in the youth justice system due

to allegations they have committed criminal acts are often referred to as

“crossover youth.”

Far too many of the children who are taken into state

care across Canada’s provincial and territorial jurisdictions end up

becoming criminalized and incarcerated, either as youths or, later in life, as

adults. It is estimated that at least 40 - 50% of youth incarcerated across

Canada “crossed-over” into youth custody from the child welfare systems.

See e.g. Mandell, D., Clouston Carlson, J., Fine, M., & Blackstock, C. (2003).

“Aboriginal child welfare” (Rep., 1-64). Waterloo, ON: Wilfrid Laurier University,

Partnerships for Children and Families Project; see also Sinha, V. , Kozlowski, A.

(2013). The Structure of Aboriginal Child Welfare in Canada. The International

Indigenous Policy Journal, 4(2). Retrieved from: https://ir.lib.uwo.ca/iipj/vol4/iss2/2

Laurie Monsebraaten & Sandra Contento “Drop in Black Children Placed in State

Care Heralded as Good Start”, Toronto Star (30 June 2017), online:

<www.thestar.com/news/gta/2017/06/30/drop-in-number-of-black-children-placed-

in-care-heralded-as-good-start.html> [perma.cc/A28K-P5QE].

Statistics Canada, Insights on Canadian Society: Living arrangements of Aboriginal children

aged 14 and under, by Annie Turner, Catalogue No 75-006-X (Ottawa: Statistics Canada,

13 April 2016).

Nicholas Bala, Rebecca De Filippis & Katie Hunter, Crossover Youth: Improving Ontario’s

Responses (Association of Family and Conciliation Courts, 2013) at 2.

See Scully & Finlay, “Cross-Over Youth: Care to Custody” (2015), online (pdf):

<www.CrossOverYouth.ca/wp-content/uploads/2016/03/Cross-Over-Youth_Care-to-

Custody_march2015.pdf>.

272 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

Their odds of becoming criminalized and incarcerated have been found, in

some studies, to be higher than their odds of graduating high school.

It is well documented that youth who have in care, especially when

placed in group care, have a strong chance of ending up facing charges in

the youth justice system, and also of serving sentences in youth corrections.

This “cross-over” is well-known amongst justice system practitioners. For

example, the small number of youths in care in Ontario make up 40-50%

of the accuseds in the youth system.

I am involved with the Cross-over

Youth Evaluation Project, a multidisciplinary team of researchers, funded

by the Law Foundation of Ontario. It is a pilot project which takes measures

to address the criminal charging of youths in care through provision of “two-

hatter” judges and lawyers (professionals who work in criminal and child

welfare systems alike) in the youth justice court. The Cross-Over Youth

Project is an exciting initiative bringing together professionals from the

child protection and justice systems.

Taking a trauma-informed approach to youth justice means

appreciating that a number of social and psychological factors affect the

behaviours, perceptions, and life chances of cross-over youth. These

extralegal factors compound and reinforce any impact that the operation of

doctrinal law may have on them. Youth generally come to the attention of

child welfare authorities as a result of their direct victimization through

violence, exposure to parental neglect, or violence between parents, and

often, all three, as well as experiences of poverty. The reasons youth are

taken into care in themselves put youths at risk of involvement with the

criminal justice system.

It is well established that mental health problems

sourced genetically or through nurture, or in some combination of both,

substance abuse, childhood maltreatment, experiencing or witnessing

abuse, living through family breakdown, and experiencing attachment

disruptions put youths at risk for offending behaviour.

Turpel-Lafond, supra note 8.

Scully & Finlay, supra note 20.

David E Barrett et al, “Delinquency and recidivism: A Multicohort, Matched-Control

Study of the Role of Early Adverse Experiences, Mental Health Problems, and

Disabilities” (2013) Journal of Emotional and Behavioral Disorders (2013) 22:1 J

Emotional Behavioral Disorders 3.

For discussion, see Ray Corrado, Lauren F Freedman & Catherine Blatier, “The Over-

Representation of Children in Care in the Youth Criminal Justice System in British

Columbia: Theory and Policy Issues” (2011) 2:1/2 Intl J Child Youth & Family Studies

99.

Cross-Over Youth 273

Flaws in the operation of the child welfare systems in which youths are

enmeshed also contribute to the likelihood that youths in care will become

involved with the criminal justice system. Systemic factors in the delivery of

care also combine to increase the likelihood of youths in care having contact

with the justice system. Multiple placements within the child welfare system

are associated with increased risk of contact with the justice system.

Instability or change in placements can increase feelings of anger, insecurity,

and mistrust on the part of a youth.

There are many factors that contribute to the disproportionate

likelihood of youth in care “crossing over” to criminalization.

Overwhelmingly, they have experienced marginality, and trauma, which is

why they were apprehended in the first place. Systemic issues within the

youth care system also contribute to their vulnerability to criminal offending

behaviour and criminalization: youth in care face frequent moves, and have

to settle in to different routines in different settings. They can lack a sense

of “attachment” or “place,” which can produce alienation and an impetus

to rebel against rules. They may have diagnoses that contribute to difficulties

with their capacity to comply with rules in a care setting.

While “cross-over” youth themselves present challenges, the ways in

which our systems respond to them are too often not adequate to address

them.

In addition to, and intersecting with, social and systemic factors,

dimensions of the legal framework in which youth criminal justice decisions

are made may detrimentally affect the chances of “cross-over” youth to

receive treatment comparable to that received by adolescents with parental

or other family support.

There are many points of intersection that have been identified by

Scully and Finlay, as well as Bala and others,

at which decisions are made

by relevant justice personnel that affect cross-over youth. Not only judges

but also Crown Prosecutors, police officers, defense counsel, probation

officers, and, not least child protection workers, make decisions in the

criminal process that can either initiate involvement of youth into the

formal criminal justice system or re-direct them into a less punitive pathways

Office of Juvenile Justice and Delinquency Prevention, Family disruption and delinquency,

Juvenile Justice Bulletin (Washington, DC: U.S. Department of Justice, September

1999).

Turpel-Lafond, supra note 8 at 11.

Nicholas Bala et al, “Child Welfare Adolescents & Youth Justice System: Failing to

Respond Effectively to Crossover Youth” (2014) 19:1 Can Crim L Rev 129 at 142-143.

Ibid; Scully & Finlay, supra note 20.

274 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

that might respond meaningfully to the youth’s context and circumstances

in the child welfare system

For example, while placed in care, particularly group care, a youth may

be criminally charged, for instance with assault or being unlawfully at large,

if they harm or threaten to harm a group home worker, or if they run away

from the facility. Assault charges are often laid even when the harm is

instigated by a physical restraint imposed on the youth by the worker. Both

these experiences themselves and the formalized criminal system response,

are typical, mundane events for youth living in group care, and events that

would be highly unusual for a youth not in care.

Further, these youth are

often charged with offences that are based on behaviour that would not

have resulted in court involvement if they lived with parents or relatives, but

rather reflects an institutional response to adolescent misbehaviour.

While police have, in many instances, a discretion to impose

“extrajudicial measures” pursuant to s. 4 of the YCJA where a young person

engages in minor offending behaviour, they are under pressure not to do

so, and to pursue a formalized process, when social workers and community

members demand a charge be laid. When criminal charges are laid,

proceedings ensue in which a youth in care must navigate two separate and

discrete systems between which there is often little or no coordination,

communication, or cooperation.

As a result, compared to youths not

involved in the child welfare system, US studies have shown that cross-over

youth are less likely to receive probation and more likely to receive punitive

sentences, including custody.

III. CRITICAL DISCOURSE ANALYSIS – CONFIGURING THE

CRIMINAL YOUTH

On a social constructivist, Foucauldian understanding of

governmentality, selves and identities are constructed in and through

Turpel-Lafond, supra note 8 at 36-37, 51.

Gene Siegel & Rachael Lord, “When Systems Collide: Improving Court Practices and

Programs in Dual Jurisdiction Cases” (2004) Technical assistance to the Juvenile Court:

Special project bulletin, (Pittsburgh: National Center for Juvenile Justice),

online:<www.ncjj.org/Publication/When-Systems-Collide-Improving-Court-Practices-

and-Programs-in-Dual-Jurisdiction-Cases.aspx> [perma.cc/S9X5-RM9V] at 1.

Denise C Herz & Anika M Fontaine, Final report for The Crossover Youth Practice Model

in King County, Washington, (Georgetown University: Center for Juvenile Justice Reform,

2012).

Cross-Over Youth 275

governmental processes;

the removal of a child from his or her family

home destabilizes, and threatens erasure of, their identity while it makes

children and youth into subjects who are constructed in the discourses of

official texts as having identities of riskiness and criminality. Rather than

being defined, as children and youth often are, relationally, with respect to

networks of family members, or even with reference to socioeconomic status

or neighbourhood, youth in care are labeled and described in official

discourses with reference to conduct and risk. To quote Joe Norris, a

hereditary chief with the Halalt First Nation in the Cowichan Valley of

British Columbia, “even if they manage to graduate high school and avoid

jail and the streets, Indigenous kids lose something when they’re removed

from family, community and culture and placed — most often — with a white

foster family...They lose their identity.”

Critical discourse analysis

official texts produced in relation to cross-over youth is a productive tool for

social research. Close scrutiny of how youth are identified, labeled, and

described in these texts, and how those definitions have governmental

effects, is a way to examine the political and ideological content of texts, and

how power and knowledge are deployed in those texts in ways that support

or refute particular narratives. As discussed below, critical discourse analysis

of official records about youths in group care, and the criminal records of

cross-over youth, reveal the way they are labeled and constructed in texts

that code and classifies them as dangerous in ways that do not match with

the underlying situations for which their conduct was noted up.

In youth criminal justice proceedings, Courts are involved in an exercise

of public sense-making. That exercise takes place on the basis of discursive

records that precede the presence of the actual youth in the courtroom in

many respects. In this exercise, it is clear that youth in the custody and care

of the Crown, face disadvantages linked to their age and family status. These

decisions are routinely made on the basis of criminal records and police

charge synopses alone, in the absence of contextual information about the

youth’s involvement with child welfare.

See Michel Foucault, Technologies of the Self: A Seminar with Michel Foucault, (Amherst:

University of Massachusetts Press, 1988) 16–49.

Katie Hyslop , “One Woman’s Campaign to End Indigenous Child Apprehensions”

The Tyee (27 November 2018), online: <www.thetyee.ca> [perma.cc/X5FN-7K5M].

See Norman Fairclough, Analysing Discourse: Textual Analysis for Social Research (London:

Routledge, 2003).

Since child welfare and the YCJA systems operate separately, there is no automatic

transfer of information between the systems, and, it is inconsistent and even arbitrary

276 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

It is an understatement to say that most youth court charges are resolved

by guilty plea. In fact, a high percentage of youth charges (41%) are stayed

or withdrawn, and fewer than 1% of youth charges are resolved by means

of an acquittal.

In turn, most guilty plea resolutions are negotiated on the

basis of formal criminal records and the police synopses of charges. In this

resolution process, the Crown’s discretion engages with the way these

youths are described and defined in official texts before the Court well

before other contextual factors in the life circumstances of the young

person, or the young person’s views, are considered. If a young person’s

situation, including being a “cross-over” youth comes to the attention of the

Court at all, this will be in the context of a Pre-Sentence report, ordered

after a guilty plea is entered. The facts alleged against a youth to constitute

an offence that are reported in a police synopsis will not reliably or

predictably make reference to the youth’s placement in social services care

or supervision.

Two examples of cross-over youth that I have studied using the

methodology of Critical Discourse Analysis are the case of Ashley Smith,

and that of Abdoul Abdi. In both Smith’s case and that of Abdi, it was clear

they, as youths in care, became constructed in formal legal texts as far more

dangerous than they actually were.

Through the bureaucratic governance model dominant in child welfare

settings, particularly in group care, youths are readily discursively

constructed as dangerous criminals in ways that submerge and obfuscate the

detailed facts and context through which they acquire labels of dangerous

and risky. A record of multiple disciplinary infractions and consequent

police interventions configures them in discourse as dangerous offenders

whether police notes or a police synopsis of an offence will mention whether a young

person was in care at the time a charge was laid. Where the facts of the allegation involve

an assault in group care, the fact that the complainant and accused were in a child

welfare setting together, or knew each other from the context of child welfare care, is

not necessarily or mandatorily mentioned. Consider the murder of Reena Virk, for

example, where, in R v Ellard, 2009 SCC 27, the fact that the victim and the group of

teens involved in beating and killing her, were almost all in the care of British

Columbia’s child and family services when the offence transpired, is a little known side-

note to the case that is largely unmentioned.

Statistics Canada reports that acquittals are infrequent in youth court cases, accounting

for slightly more than 1% of cases in 2014/2015 and this proportion has remained

stable since data collection began in 1991/1992. Statistics Canada, Youth crime in

Canada, 2014, by Mary K Allen & Tamy Superle, Catalogue No. 85-002-X (Ottawa:

Statistics Canada, 17 February 2016).

Cross-Over Youth 277

when they come before criminal courts, and when decisions are made about

the conditions under which they are to be held in custody. As is discussed

below, this discursive transformation of youth in care into criminals took

place in the Ashley Smith case; it happened in the Abdoul Abdi case: it

happens routinely every day.

In my PhD thesis, 2015 book,

and 2017 article,

I looked critically at

the Ashley Smith case as an instance of public sense-making about a

vulnerable, system-involved youth. I critically analyzed governmental work

done by discursive figures of Smith produced in that case in official texts.

This critical discourse analysis (CDA) of public texts, which revealed how

sense was made of Ashley Smith in the official record, demonstrated how

completely she was discursively configured in legal proceedings as a carceral

subject: an inmate. Smith accumulated over 75 youth charges and hundreds

of disciplinary infractions while in group care, and then in custody.

Through bureaucratic processes of exclusion, she was deemed a risk to

others and an impediment to the efficiency of the system. Because she was

unruly and resistant, logics of risk and security intersected to code and label

her, as “high risk” or high needs, and therefore, dangerous, and ultimately,

a “maximum security” prisoner notwithstanding the fact she had never

seriously harmed anyone but herself and her index offence, for which she

entered custody, was throwing apples.

The widely publicized inquest into Smith’s death at age 19 in Federal

Corrections custody at Grand Valley prison, which ultimately ended in the

shocking verdict of homicide, focused for jurisdictional reasons, on her time

in adult prison only. The four to five years she had spent crossing over

between group homes and correctional custody in New Brunswick’s child

welfare and youth justice systems through the machinations of hundreds of

charges for disciplinary infractions was not part of the conversation at the

inquest. However, as I argue in my book, it was not just the 11 months she

spent in adult corrections, but at least as much those years and the hundreds

of youth charges, that were crucial factors contributing to her death.

Rebecca Bromwich, Looking for Ashley: Re-Reading What the Smith Case Reveals About

the Governance of Girls, Mothers and Families in Canada (Bradford: Demeter Press,

2015).

Rebecca M Bromwich, “Theorizing the Official Record of Inmate Ashley Smith:

Necropolitics, Exclusions, and Multiple Agencies” (2017) 40:3 Man LJ 193, (last

accessed 28 May 2019) online: 2017 CanLIIDocs 370, <www.canlii.org/t/2c50>

[perma.cc/N76E-ZUFD].

278 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

I argued in my prior work, and reiterate now, that Smith's is a case

fundamentally like those of many system-involved youth, and, but for its

spectacular and tragic end in her 2007 death, captured on video, and later

ruled in a 2013 inquest to be a homicide,

was representative of routine

processes that affect “cross-over” youth. While Ashley Smith’s case has been

understood to be an instance of the abuse of solitary confinement, it is also

an example of the criminalization of cross-over youth.

Similarly, I looked at the governmental work done by discursive figures

of Abdoul Abdi, produced in criminal and immigration law discourses in

my expert affidavit that was tendered as evidence by counsel for Mr. Abdi

in that 2018 case.

Abdoul Abdi was a system involved or “cross-over” youth

in Nova Scotia who had family ties to Somalia but had never lived there,

having been taken to Canada as a child by refugee relatives. Early in his life,

he became the subject of a child welfare apprehension. More specifically,

Abdi was born in Saudi Arabia to a Somali mother, then spent four years

in a refugee camp in Djibouti. He landed in Canada at the age of six with

his sister and two aunts. A year later, at the age of seven, Abdi had been

taken into child-protective services custody. He became a permanent ward

of the state shortly thereafter. Although a Crown ward, Abdi was never

adopted. Instead, he was shuffled between 31 placements while "in care,"

most of which were group homes. As is typical of the consequences to

youths of living under the bureaucratic and formalized governance models

prevalent it group care, it was in those group care settings that Abdi

accumulated a youth criminal record. In consequence to this record, and to

the child welfare authorities’ egregious inaction with respect to regularizing

Abdi’s immigration status, the Canadian government sought to deport Abdi

to Somalia, a country where he had lived only briefly as an infant.

However, these two youths had much in common. These two youths –

Ashley Smith and Abdoul Abdi - had in common their child welfare system

involvement. They were “cross-over” youth who became vulnerable to

criminalization in different child welfare systems (New Brunswick and Nova

Scotia) and faced different kinds of marginality by virtue of their different

gender and race. Their stories did not end the same way: Ashley Smith died

Ontario, Office of the Chief Coroner, Coroner’s Inquest Touching the Death of Ashley

Smith, by John Carlisle, (Toronto: OCC, December 13, 2013).

Abdi v Canada (Public Safety and Emergency Preparedness), 2018 FC 733, [2018] FCJ No

774.

Cross-Over Youth 279

in prison while Abdoul Abdi’s appeal of the decision to deport him was

ultimately successful. They were both vulnerable, precarious, system-

involved youths who acquired criminal youth records the same YCJA

context and faced, fundamentally, the same problem: a youth criminal

record preceded their arrival at criminal and other legal proceedings, a

discursive representation of them that produced dangerousness from a

series of incidents that would have, but for their correctional and child

welfare system involvement, not have been characterized the same way. Like

Smith’s death, and the threat to deport Abdi, the disproportionate over

incarceration of system-involved youth is a predictable outcome of the

intersection of logics of risk and security: it will recur unless interrupted. It

will continue. In the governing logics in operation in child welfare-run

settings, particularly group care, governing logics subject system involved

youths to different, and often higher, levels of official scrutiny than other

young people.

The formalized, bureaucratic models of governance prevalent in group

care settings, whereby adolescents in care receive a series of warnings, and,

often, are criminally sanctioned as a consequence of any physical violence

or theft, results in the police involvement with youth in group care in ways

they would not likely be involved in a family setting. It results in the

production of records, coding, and classification of youths in ways that

discursively construct them as dangerous. To a large extent, the form of

bureaucratic surveillance to which youths in care, particularly group care,

are subject, produces their criminalization.

Questions of admissibility of records, criminal, disciplinary, and

otherwise, are important when the issue of how youths are labeled and

constructed through the way they are talked about in the discourses of

official child welfare and criminal records is considered. Records and other

information about youths before the Court are difficult to obtain prior to a

guilty verdict. The child welfare system and criminal justice system are, to a

large extent, opaque to one another, at least until a finding of guilt has been

made.

280 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

IV. PARENTS, EVIDENCE LAW, AND THE

YCJA

The YCJA supplements the Criminal Code of Canada,

the Canada

Evidence Act,

and Charter of Rights and Freedoms.

Accordingly, under the

YCJA, youths are entitled to the presumption of innocence and various

protections afforded any criminal accused under evidence law. Like any

adult accused, they are entitled to the right to remain silent, the right to

know the reason for their detention or arrest. They have the right to retain

legal counsel and to be secure against unreasonable search and seizure, as

well as against arbitrary detention.

In addition to the legal rights of adults, youths are provided additional

procedural protections under the YCJA. Many of these protections centre

on the access a youth is entitled to have to a parent or responsible adult, as

guide, mentor, and practical advocate, through the criminal justice process.

As an evidentiary protection, youths have the right to have an adult or

parent present when being questioned by the police, as will be discussed

below. In the following discussion, I argue that, to remedy problems with

the over-criminalization and over-incarceration of cross-over youth, the

YCJA should be reframed with this reality in mind. More specifically, I

would suggest that a helpful place for this intervention to take place would

be to amend the evidentiary protections provided under s. 146 of the YCJA.

Consultation with, and involvement of, parents is woven through the

YCJA as a foundational idea. The Preamble to the YCJA recommends that

the justice system should partner with the youths’ families and communities

to prevent youth crime by addressing its underlying causes, responding to

the needs of young persons, and providing guidance and support. It is

articulated in the Declaration of Principle of the YCJA that “measures taken

against young persons who commit offences should…where appropriate,

involve parents, [and] the extended family.”

Notice to a parent is provided

for under s. 26 of the YCJA. This section requires police to provide a Notice

to the parent about a young person’s first court appearance. Section 26(4)

allows for another adult to be served with the notice if no parent is locatable.

Criminal Code, RSC 1985, c C-46.

Canada Evidence Act, RSC 1985, c C-5.

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

For general discussion, see e.g. Nicholas Bala & Sanjeev Anand, Youth Criminal Justice

Law, 3rd ed (Toronto: Irwin, 2009).

YCJA, supra note 13, s 3(1)(c)(iii)).

Cross-Over Youth 281

Provisions for consultation with parents are especially salient under the

YCJA because acquittals are so rare, guilty pleas so frequent, and concerns

have been raised about the extent to which the right to counsel afforded in

the YCJA is meaningful, as it is infrequently exercised.

Section 146 of the

YCJA is the provision dealing specifically with evidence under the Act. It

expressly states that the rules of evidence as generally applicable in adult

prosecutions apply in youth criminal justice court. It provides an

“enhanced” protection for youths.

Section 146(2) provides additional

protections to youths, specifically enumerating at sub (2)(c) that the young

person must be given an opportunity to communicate with counsel and a

parent. Evidentiary protections set forth under the YCJA specifically

contemplate that a parent is an important practical advocate whose role is

supplementary and additional to a lawyer: affording a young accused access

to legal counsel does not suffice to address the role a parent provides in

evidentiary protection.

The relevant portion of s. 146(2) of the YCJA sets out as follows:

opportunity to consult

(i) with counsel; and

(ii) with a parent or, in the absence of a parent, an adult relative or, in the

absence of a parent and an adult relative, any other appropriate adult chosen by

the young person, as long as that person is not a co-accused, or under

investigation, in respect of the same offence; and

(d) If the young person consults a person in accordance with paragraph (c),

the young person has been given a reasonable opportunity to make the statement

in the presence of that person.

Evidence law under the YCJA therefore contemplates and provides for

the protective and supportive role of an "appropriate adult" of the young

See Michele Peterson-Badali et al, “Young People's Experience of the Canadian Youth

Justice System: Interacting with Police and Legal Counsel” (1999) 17:4, Behav Sci & L

455–465. See also Michele Peterson-Badali et al, "Young People's Perceptions and

Experiences of the Lawyer-Client Relationship" (2007) 49:3 Can J Corr 375–401.

Larry C Wilson, “Enhancing the Enhancements? Section 146 of the Youth Criminal

Justice Act and the Supreme Court of Canada: A Comment on R. v. L. T.H.” (2009)

40:2 Ottawa L Rev 267, (last accessed 28 May 2019) online: 2009 CanLIIDocs 59,

<www.canlii.org/t/28fq> [perma.cc/WQD7-A8HH].

282 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

person's choosing, or, preferentially, a parent as a practical advocate in

helping ensure rights protection.

Justice Rothstein, writing in R v L.T.H., made clear that the protections

afforded young persons in relation to their statements are significantly

broader than those provided to adults under the Charter. He wrote:

Unlike an adult, a young person must be advised of the right to silence. A young

person must also be warned of the potential use of any statement made to a person

in authority. He or she must be advised of the right to consult with counsel and a

parent, and to have those persons present while a statement is made-If any of these

requirements are not satisfied, the statement will automatically be

inadmissible...In contrast, an adult only has to be informed of the reason for arrest

and the right to retain counsel.

In fairness, it is not clear from court records that parents in fact play

active roles in youth criminal justice proceedings, nor is there good data

available on what the outcomes of this involvement might be.

In the

context of a strong emphasis (placed in s. 4 of the Act) on using less formal

extrajudicial measures where possible, it may be that the impact of parental

involvement is felt more often at the stage of police contact or arrest, and

never becomes visible in Court. More research is warranted into how

parental involvement factors in to YCJA processing.

In any event, the focus on parental involvement is obviously

problematic for cross-over youth. Coupled with their vulnerability to being

labeled as dangerous in ways disproportionate to their actual offending

behaviour, cross-over youth are disadvantaged by operation of the YCJA

because the legislation specifically contemplates, throughout, the

involvement of parents. The ways in which parents are to be involved in the

youth criminal justice process are not always clearly articulated, and may not

be effectively realized even when youths are living in their families of

origin.

Nonetheless, it is a basic assumption woven throughout the logic

of the YCJA that parents will be involved as supportive guides and practical

advocates for a youthful accused. This assumes that parental support is

available. Such an assumption is not tenable in the context of the reality,

Ibid at 277.

See Michele Peterson-Badali & Julia Broeking “Parents’ involvement in youth justice

proceedings: perspectives of youth and parents” (2004) Report to the Department of Justice

Canada, online (pdf): <www.justice.gc.ca/eng/rp-pr/cj-jp/yj-jj/pdf/sum-som.pdf>

[perma.cc/S53T-7HJB].

See, generally: Michele Peterson-Badali & Julia Broeking, "Parents' Involvement in the

Youth Justice System: Rhetoric and Reality" (2010) 52:1 Can J Corr 1.

Cross-Over Youth 283

discussed earlier in this paper, that for a very significant portion of the

population of youthful accuseds, the disadvantages of life in child welfare

care are compounded by a lack of access to meaningful parental involvement

Federal funding and legislative amendment providing for practical

advocates to be made available to youth not able to access parental support

might go some distance to alleviating the disproportionate criminalization

of cross-over youth. It may be, as Bala et al recommended as one of a series

of recommendation as to how to address the needs of cross-over youths,

(including reducing the reliance on group care and increasing collaboration

between systems) that the most effective remedy for evidentiary issues

disadvantaging youths in care, because of their lack of a parent who can

meaningfully engage in proceedings, would be to increase the advocacy role

of child welfare workers.

This could involve a reframing of the role of child

welfare workers in youth criminal justice proceedings and would likely

necessitate new funding streams and jobs for care workers. I would argue

that it would simultaneously make sense for the YCJA itself to contemplate

provision for youths to access a practical advocate in addition to a lawyer,

and for Federal funding to be deployed to make this possible.

A key issue for youth is to have their rights properly explained;

providing access to a parent or person in authority is supposed to assist in

that but where youth are “in care” this is often not meaningfully accessible.

A greater obligation should be imposed on the provincial child welfare

authorities to ensure an "appropriate adult" is made available. It may be that

the budgetary capacity of child welfare needs to be increased in order to

facilitate this. Additionally or alternatively, s. 146 should be amended to

level the playing field between cross-over youth and youth situated in

families. Directly concerning the Federal legislation, amendment to s. 146

to provide for court appointment of an “appropriate adult” that is analogous

to the provision allowing for appointment of counsel under ss. 25(4) and

(5), might be a beneficial change.

The presence of a parent as a practical advocate, assured under s. 146

of the YCJA, provides an opportunity for an adult to explain the processes

of the court. A practical advocate can support the youth not just legally but

emotionally and developmentally. Most significantly, a practical advocate

can potentially interrupt the harsh, exclusionary operating logic of the way

the youths are defined and described in discourse as carceral subjects.

Bala, de Filippis & Hunter, supra note 19 at 38.

284 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

Parents can, potentially, mobilize different constructions of their adolescent

child in the conversation taking place in courtrooms and public debate

about their children.

The issue of admissibility and evidence law generally are particularly

salient when youths in care are considered especially because there are likely

to be significant records about those youths, because their identities outside

of those official discursive constructions are made unstable by their

precarious status: at a minimum, they are more likely than youths living

with their families of origin to have potentially prejudicial documentary

evidence available about their pasts. Cross-over youths are thus especially

vulnerable and in need of the protections of evidence law at the same time

that those protections are not as meaningfully available to them.

V. ANALYSIS AND RECOMMENDATIONS

This paper has suggested a theoretical lens, through the method of

critical discourse analysis, to inform discussion of the well-established

problem that youths in the care or under the supervision of the child welfare

systems of Canada’s provinces and territories disproportionately become

involved with the criminal justice system, and, in appallingly large numbers,

ultimately become incarcerated adults. It is clear that cross-over youth

present distinctive and different needs that are clearly not yet well addressed

by either the child welfare or youth criminal justice systems. The personal,

social, and financial costs to be saved by changing the ways in which the

system works with cross-over youth would be difficult to overestimate. Given

that these youths make up about half, and perhaps more, of our youth

corrections populations, and then comprise far more than their share of the

adult correctional inmate population, the potential benefit of early

interventions in the process of their criminalization is immense.

There is no single quick fix for the problem of over-criminalization of

“cross-over youth” in the youth criminal justice and youth corrections

system. The paper has explored how Canada’s criminal justice and

correctional systems are complex. It is a truly federal system, with the

Federal criminal law doctrine interacting with thirteen provincial and

territorial systems addressing procedural aspects of setting up courts, as well

as providing their own youth criminal justice systems. Further, the

provincial and territorial child and family services systems are not unified

internally. Manitoba, for example, has 4 child and family service

Cross-Over Youth 285

‘Authorities’ which oversee 27 ‘agencies.’ In Ontario, there are over 50

‘Children’s Aid Societies.’ Provinces and territories also provide uneven

funding for community supports to criminal justice. The system is complex

indeed. Because they are complicated, these systems cannot be easily fixed

with one quick solution. Further, because the social and psychological

circumstances of system-involved youths are also complex, doctrinal law

itself cannot be looked to as a single solution to the problem of over

incarceration of cross-over youth.

Collaboration amongst systems and approaches that start in a position

informed by the contribution of trauma to youths’ lives and behaviours, are

certainly part of the solution, as Bala and colleagues have contended:

the challenges faced by cross-over youth are multi-faceted and dependent on the

social and familial context of individual youth. However, there is a theme that

emerges and affects all youth in navigating the two different systems: that is there

is a problem of fragmentation and lack of integration.

Certainly, we need systemic child welfare law reform in principle to

support families in lieu of removing kids where possible, particularly where

the protection concerns are directly linked to poverty or parental

experiences of victimization. At a more local level, it could be useful to go

upstream from the courts to where the charges come from. Legislative and

regulatory change could be made to provincial and territorial child care

regimes to provide alternative mechanisms and supports for dealing with

adolescents’ misbehaviour while in state care in lieu of quicker recourse to

police involvement than would be present in a family home. Legislative

provisions could be matched and mirrored with new supports and

procedures within the child welfare systems to discourage and reduce the

reliance of group homes and child welfare authorities on resorting to

charging youths.

To remedy delays in the criminal justice system, overburdened courts,

and over-filled prisons, change should be made not only to the criminal law

but to our provincial and territorial regimes for child protection. Under our

Ibid at 2.

Section 6(1) of the YCJA requires police, before starting judicial proceedings, to

consider whether it would be sufficient to take no further action, to administer a

caution, or to refer a youth to an appropriate community agency or program. This

means that, in the YCJA, as already written, Court should already be a last resort. Since

warnings, cautions, and referrals are not formally tracked by most police services, it is

largely unknown how often police do or do not use them, and in what circumstances.

286 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

Constitutional division of powers, these regimes are fragmented and subject

to the will of varying and changing governments. Especially as consistent

change to provincial and territorial child protection laws is neither

forthcoming nor reasonably to be expected imminently, more coherent

change could potentially, at least on an interim basis, be ushered in through

new Federally-crafted and funded support in the YCJA for kids in care.

Collaborative solutions involving multiple systems across jurisdictions

would be helpful towards remedying the problem of the over incarceration

of cross-over youth, but Federal action is warranted and necessary to ensure

meaningful action is consistently taken. A key difficulty with seeking to

remedy the situation through provincial and territorial action is that this

depends upon the will of a variety of governments across the country.

Governments at the provincial and territorial level across the country are

not necessarily ad idem in their views about child protection, or justice, and

they are not invariably supportive of youth in care. Prevailing political

agendas across the provinces often diverge. Systemic movements towards

better supporting youths in, and aging out of, care, as well as a shift away

from a focus on apprehensions in the first place do not seem to be reliably

or consistently forthcoming.

Attempts towards systemic changes to child welfare are being made in

several jurisdictions. In 2018, British Columbia introduced Bill 26, crafted

to allow Indigenous communities a more meaningful role in ensuring

children remain within their societies, and to recognize the importance of

enabling Indigenous children to access, practice, and learn about, their

culture.

In 2017, Ontario’s then-government enacted a new Child Youth

and Family Services Act

a statute that amended the province’s child welfare

regime to ensure better support for youths aging out of care, and to

encourage and facilitate kinship placements in more circumstances, seeking

to keep children out of foster care where possible. Similarly, in a positive

Manitoba development, that province’s child protection legislation was

amended in 2018 in an effort seeking to ensure that children and youth

could not be apprehended into state care on the basis of their family’s

poverty alone.

However, the same week that Manitoba amended its law,

Bill 26, Child, Family, and Community Service Amendment Act, 2018, 3rd Sess, 41st Parl,

BC, 2018 (assented to 31 May 2018), SBC 2018, c27.

Child, Youth and Family Services Act, SO 2017, c 14.

After the 2018 amendments to Manitoba’s The Child and Family Services Act, SM 1985-

86, c 8, direct consequences of poverty such as a child not having a coat or sufficient

Cross-Over Youth 287

and one year into the operation of Ontario’s CYFSA a newly-elected and

differently oriented Conservative Ontario Government signaled a radically

different direction by announcing its intention to discontinue funding the

Province’s Office of the Provincial Advocate for Children and Youth. This

Ontario office was intended to ensure young people have a voice about

things that affect their lives. Subsequently, in spring 2019, the Ontario

Provincial government reduced funding for child protection by $84.5

million dollars per year.

While the Ontario government has committed to

transfer some of the functions of the Office of the Provincial Advocate to

the Ombudsman of Ontario, that government’s actions illustrate the

vulnerability and complexity in seeking to address the needs of youth

coming before the federally constituted youth criminal justice courts by

relying on the changing whims of provincial governments.

In this article. I have contended that there are multiple strategies that,

together, can be employed to improve the situation. More specifically, we

need to facilitate collaboration across systems (health, child welfare,

education, and justice, as well as others), as is sought to be done by the

Cross-over Youth Project. We need to look beyond, and more specifically

upstream from, evidentiary protections and trials to understand, deal with,

reform, and improve, the functioning of the youth criminal justice system

in Canada. If law reform is to be used to remedy the disproportionately high

numbers of “cross-over” youth sentenced and held in custody in Canada.

The unique contribution of this paper, and therefore my specific

addition to offer conversations about cross-over youth, is a theoretical

postulation based on an analysis of the intersection of discourse with

evidence law is a part of the problem presented by the “cradle-to-

incarceration pipeline,” and therefore can be part of the solution. This

paper has argued that evidentiary protections available to adolescents under

s. 146 of the YCJA and through the Act in general, are far less meaningfully

available to youth “in care” than to youth situated in families because they

food will not themselves be considered “neglect” as a basis for apprehension of a child.

Interventions in circumstances where poverty is clearly the major concern for the family

are now intended to be supportive of the family unit.

See Contenta, Sandro, “Ontario Government Slashes Funding to Children’s Aid

Societies” (22 May 2019) The Toronto Star. See also Marv Bernstein & Birgitte

Granofsky, “Eliminating the Ontario Child Advocate’s Office a mistake” The Toronto

Star (19 November 2018), online: <www.thestar.com/opinion/contributors/

2018/11/19/eliminating-the-ontario-child-advocates-office-a-mistake.html>

[perma.cc/LX4K-3H29].

288 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

focus on affording parental and family support to adolescents, supports that

youths who are wards of the relevant provincial or territorial child welfare

authorities cannot access. At the same time, evidentiary protections are

especially relevant to the circumstances of cross-over youth, in light of the

ways that they are constructed in the official discourses of criminal youth

records. Consequently, it has suggested that the YCJA could be reformed to

provide alternatives should to the YCJA default to “parent.”

In addition to specifically suggesting a re-evaluation and amendment

of s. 146, my general recommendation is that, in much the same way as

consultation with, and involvement of, parents, is woven through the YCJA

as a foundational idea, the reality is that for a very significant portion of the

population of youthful accuseds, disadvantaged social position is

compounded by a lack of access to meaningful parental involvement. So,

the Act should be reframed with this reality in mind. More specifically, I

would suggest that a helpful place for this intervention to take place would

be with reference to evidence law under s. 146 of the YCJA. The YCJA

should not assume the presence of benevolent, involved parents in the lives

of the youths subject to it. Rather, the Act should be reformed to take an

approach to evidence that opens up possibilities for meaningful justice for

those already disadvantaged by their removal from, or inability to access, or

lack of experience with, the privilege of a family home.

VI. CONCLUSION AND SUGGESTIONS FOR FURTHER

RESEARCH

This paper has critically explored the disproportionate criminalization

and incarceration rates of “cross-over” youth. It has looked at how

adolescents who are "system involved" through the child welfare systems,

either in foster care or under child welfare supervision across Canada’s

provincial and territorial jurisdictions, are facing dire life chances, in terms

of health, education, and career prospects, and are disproportionately also

enmeshed in youth criminal justice proceedings. It has looked at how

virtually all have grown up in poverty; many are racialized or Indigenous; all

are marginalized.

This article critically considers trauma-informed perspectives on why

cross-over youth are so often criminalized, taking into account their

psychological and social challenges in child welfare settings, honing in on

the particular disadvantages system-involved or “cross-over” youths face

Cross-Over Youth 289

when dealt with under the YCJA. I have argued that a significant portion of

this over criminalization can be explained through a new, theoretically

engaged understanding of the intersection of how dangerousness and

criminality are constructed in official discourses for cross-over youths with

YCJA evidence law. I have argued that YCJA evidence law compounds the

disadvantages of cross-over youth, who are already socially excluded, setting

them up for disproportionate criminalization and incarceration. Both with

respect to their statements and to documentary records about them, cross-

over youth are vulnerable under Criminal Evidence law in ways that youths

who reside in their families of origin are less likely to be.

This article has contended that early interventions preventing

apprehensions in the first place should be promoted. It also suggests ways

in which this “cross-over” or “cradle-to-incarceration pipeline” can be

addressed through criminal law. I specifically suggest changes to evidence

law under the YCJA that should be combined with shifts to provincial and

territorial child welfare law and policy. We need to counter explicit and

implicit assumptions -running throughout youth criminal justice processes

and protections – that a youth before the Court will be able to draw upon

parental support.

Certainly, further research should be conducted into how the over-

incarceration of cross-over youth relates with doctrinal evidence law.

Research should be conducted into to what extent the disadvantage cross-

over youth face under s. 146 of the YCJA might render the provision

unconstitutional under s. 15(1) of the Charter as family status

discrimination. Further, critical discourse analysis of a larger number of

cases relating to cross-over youth that unpacks ways in which their criminal

records and child welfare records are dealt with by Courts would be useful

to test the theoretical position I have taken about how they are routinely

configured in discourse. Finally, especially since Ontario’s Cross-over Youth

Evaluation Project

is a quantitative, mixed-methods study, and since it is

I am involved with a team of researchers in conducting a formative and summative

evaluation of the Cross-Over Youth Project (COYP). Brian Scully & Judy Finlay,

Cross-over youth: Care to custody, Report completed on behalf of the Cross-over

Youth Committee (Toronto, 2015), online (pdf): <docplayer.net/64549375-Cross-

over-youth-care-to-custody.html> [perma.cc/8TXK-E68A]. The COYP an innovative,

four-year, community-based demonstration program in Ontario. (Toronto, Belleville,

Thunder Bay and Chatham) The COYP aims to address the systemic factors that

contribute both to the high rate of youth transitioning from one system into the other

and to the poor outcomes they experience, compared to their non-child welfare

290 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4

struggling to gain access to the youths who participated, the situation calls

for new research using grassroots, qualitative, applied research methods that

involve collaboration with youths to support the inclusion of their own

views and voices in policy conversations about what should be done to

address their circumstances.

counterparts. Addressing systemic factors is expected to reduce the number of youth

in the child welfare system who cross-over into the youth justice system and to

improve their outcomes by enhancing justice and child welfare system responses. The

COYP seeks to facilitate the communication and co-ordination between the two parts

of the justice system and allow youth involved in the two systems to have

representation that is more effective than current practice. Working with Principal

Investigator Dr. David Day, a Ryerson University psychologist, and funded by the Law

Foundation of Ontario, we are assessing the Toronto site’s effectiveness.