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August 18, 2006 - Ottawa Citizen (CN ON)

Column: The Courts Should Not Be Doing Social Work

By Dan Gardner, The Ottawa Citizen

Return to Drug War News: Don't Miss Archive

So it turns out that the justice minister doesn't want 10- and 11-year-olds to attend sleepovers in the Kingston Pen. "They do not need incarceration," Vic Toews wrote in a letter to the Citizen ("Correcting the record on youth crime," Aug. 17).

Well, that's a relief. When the minister suggested in a speech to the Canadian Bar Association -- not exactly a Jesus-and-jails crowd -- that the age of criminal responsibility be lowered to 10, he got people wondering what the next step would be. One lawyer speculated on the return of the death penalty. For children 10 and 11 years old. I think she was joking but given Mr. Toews's track record, and considering what most criminal justice experts think of Mr. Toews and his government, I cannot be certain.

But as the minister explained in his letter, he actually sees troubled children as "victims" and he wants to ensure "they get the treatment they need." The way to do that, he feels, is to lower the age of criminal responsibility so pre-teens can be brought into the loving embrace of the criminal justice system.

I beg the reader to pardon the wholly excessive tone of sarcasm in the preceding sentences. It's just that I have rarely read something as disingenuous, dumb and dangerous as Mr. Toews's letter.

The disingenuousness is easy to spot. In his letter, Mr. Toews portrays his proposal as one big group hug. But in his speech to the CBA, Mr. Toews said "we need to find ways to ensure that kids are deterred from crime." That's not the language of group hugs. It's the same scare-the-punks-straight thinking the minister uses in regard to adult criminals.

And boy, is that dumb. These are kids we are talking about. By definition they are immature, and a big part of immaturity is an inability to consider the future consequences of actions. Literally: The part of the adult brain that weighs future consequences doesn't exist in the brains of pre-pubescent children.

Dumber still is the logic of Mr. Toews's proposal.

The minister complains that provincial social service agencies aren't intervening to help 10- and 11- year-olds caught up in gangs and crime. So the age of criminal responsibility must be lowered, Mr. Toews says, to allow courts to give kids the help they need but aren't getting from the agencies.

But here's a thought: Why not ask the social service agencies to do what they are trained and paid to do? If they need more money or power, give it to them. But tell them to do their job. Isn't that the straightforward way to go about it?

What Mr. Toews is proposing makes about as much sense as calling for the RCMP to take over road maintenance because provincial transport ministries are doing a lousy job filling potholes.

As for the danger in Mr. Toews's letter, it comes in two forms. One is obvious. The other, less so.

The obvious danger is labelling. However enlightened the justice system's handling of young offenders, its foundation remains the finding of guilt -- deciding and declaring that what you did was a crime and what you are is a criminal.

And telling a 10-year-old he is a criminal is an excellent way to ensure he becomes one.

The less obvious danger is hinted at in Mr. Toews's use of the word "treatment." What these kids need is help for all sorts of problems, only a few of which (such as mental illness and substance abuse) would require what most people would call "treatment." So why would Mr. Toews label all help "treatment"?

The answer lies in a seismic shift in justice philosophy right across North America. Sometimes called "therapeutic justice," the idea is to replace the justice system's traditional role of blaming and punishing with one of curing the ills that cause the criminal behaviour. Drug courts and other speciality treatment courts are the most tangible product but the concept is influencing justice in countless other ways.

In practice, therapeutic justice does not, however, displace blame and punishment. It is simply layered on top of it. The result is a blurring of the line between the sick and the guilty. Is the person in a drug court a sick addict or a responsible criminal? In effect, he's both. That's why therapeutic justice is popular across the political spectrum: There's something for everyone.

But in logic and principle, this blurring is indefensible. Mr. Toews offers a good example in his letter when he writes that child-offenders are "victims" who must be held "accountable for their actions." When most people talk about blaming the victim, they mean it be a criticism: Mr. Toews wants to make it national policy.

Beyond principle, the blurring of lines caused by therapeutic justice invites abuses of the sort that routinely occurred in American criminal justice in the 1950s -- the last time the idea of courts "curing" criminals was popular. Chief among these abuses was a steady expansion of the justice system's net, particularly among young offenders: What started as benevolence ended in abuse, and it took more than a decade of struggle to put a stop to it.

Now, to be fair, Mr. Toews deserves credit for drawing attention to a real problem. It would have been easier to say nothing.

But still, if the best solution he can come up with is to haul 10-year-olds into court, it might be best if, next time, he took the easy way out.

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