The Power of Perspectives

The Canadian Bar Association

Rebecca Bromwich

The time to reform the Youth Criminal Justice Act is now

October 21 2016 21 October 2016

October 19 marked the 9th anniversary of Ashley Smith’s death in Corrections custody, whose tragic story I wrote about a year ago.  Smith died in solitary confinement at age 19 in an adult prison after having been convicted with a series of offences in relation to disciplinary infractions while in youth custody.  She was first imprisoned for the offence of throwing apples.

The verdict in the 2013 inquest into her death ruled it to be a homicide.  She died from a caustic combination of administration of justice sentences and correctional processes that excluded her and violated her rights progressively and unremittingly. I joined many others in calling for action on Canada’s problems with solitary confinement.  I also argued for a rethink of how youth criminal justice law is being deployed against girls.   

In the ensuing 12 months, much has changed, but these problems have not been solved.  We need to redouble our efforts to ensure changes to conditions of custody and the Youth Criminal Justice Act are made so that deaths like hers become less likely to occur.

October 19th also marks the first anniversary of the Trudeau governments election win. Politicians are again finally talking about solitary confinement and justice issues in general. Prime Minister Justin Trudeau made direct reference to the Smith case and the need to change correctional practices in the letter to Justice Minister Jody Wilson-Raybould in November 2015.   

Even so, this change in political rhetoric and political will has not yet produced significant changes to practices on the ground. Reform to rules constraining conditions of confinement in custodial facilities at the Federal and Provincial levels across Canada remains stymied by a lack of information and transparency in the correctional system.

Change efforts have been stymied and delayed by the secretive practices of CSC. And provincial jails still refuse to release complete data about forms of segregation.  Yes, the provinces are moving forward in some ways on the issue of segregation individually, with, for example, a recent move by Ontario to reduce reliance on solitary confinement. However, this movement needs to be legislated comprehensively, as the Toronto Star argued in a recent editorial.

As I’ve recently stated elsewhere, it is time we took another look at the YCJA. More specifically, the government must reform the youth justice sentencing regime under which Ashley Smith was consigned to adult custody. Changes in 2012 under Bill C-10 to the Youth Criminal Justice Act, ignoring the warnings of the Nunn Commission report, remain in place. The effects of these changes on girls, and racialized or otherwise marginalized youths, are still not considered in the current law.

This week, Ontario’s Human Rights Commission renewed its call to the Ministry of Correctional Services in that province to put an end to the “alarming and systemic overuse of segregation” in Ontario jails. This is an important statement.  It is valuable and imperative that we keep the pressure mounting on federal, provincial and territorial governments to reduce their reliance on forms of segregation specifically and over-incarceration generally, and make sure also to keep advocating for reforms to the sentencing practices which are producing a growing disproportion of aboriginal girls in sentenced custody under the YCJA.

Momentum is a tricky thing: it can easily be lost. Political will can be fickle. Promise of change, must lead to actual transformation.

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