Youth justice review sorely needed for age-old Manitoba problems

One has to give Manitoba’s provincial government some credit: they seem to love a big challenge.

That was my initial reaction to the announcement Friday it’s going to review the intersection between Manitoba’s child-welfare and youth justice systems (the ‘CFS-to-prison pipeline’ as it’s sometimes described).

The goal is to end “cycles of crime” for at-risk kids. Read above graphic for the data that prompted the government to raise the need for this review and overall issue.

Without wanting to pre-judge the results, three things jump out immediately:

• It’s about time this happened
• The review will likely demonstrate what’s been obvious for a long time
• Open your wallet

It should not be news to anyone paying even the slightest attention that Manitoba CFS kids make up a huge proportion of youth involved in the justice system (the province said an October assessment of intakes at the Manitoba Youth Centre was 60 about per cent CFS-involved kids — I suspect it’s higher).

It should not be news that there’s a staggering number of kids in CFS care (between 10-11,000 depending on who is counting).

It should not be news that the vast majority of kids in care and in jail are Indigenous.

The evidence shows this has been the state of things for years and years.

For those left in doubt, a handy primer on the evolution of these major issues in terms of youth justice is an excellent 2018 Manitoba Law Journal article, “Too Bad, So Sad,” by criminologists Russell Smandych and Raymond Corrado.

The piece examines policy changes and youth justice reform in Canada from 1995-2015, through the (importantly, here) advent of sweeping, but extremely politically-charged, legislative changes brought about by the advent of the Youth Criminal Justice Act in 2003.

Around 2007, the then-Conservative federal government held roundtables on the issues in implementing the YCJA, and a report summarizing the findings of “youth justice and child welfare professionals from across the country” was written in 2008 (more than a decade ago).

While the article is nationally-focused, Manitoba’s situation looms large in it given the dire state of the youth crime problem here. It’s worth a full read, but I’ll pull out a few things of note:

“A common refrain in the report was the concern about the lack of sustainable funding to support restorative justice and diversion programs. Roundtable participants consensually agreed in principle concerning “the need for systems… to be better resourced to support children and families as they enter the youth justice system, while at the same time all of the provinces and territories “identified a lack of local resources, or sustainable resources to implement the programs and services necessary to fully embrace the YCJA.” Pointedly, in one session, “the YCJA was referred to as a Cadillac on a Volkswagen budget.”

For Manitoba specifically:

“[o]n paper the legislation has a lot of options and flexibility but in reality there are no resources on the front end or the back end; they are all in custody”

(I note, somewhat dryly, that the Justice report referenced here summarizing national and regional concerns was only released way back when via an Access To Information request. TO the province’s credit, it says the current review will be made public).

Delving deeper into the roundtable report specifically, the Manitoba section further elaborates on the situation in 2008-ish:

To be clear, this report is talking specifically about the youth justice system, and not CFS per se.

But given the correlation of who the clients are in the system, it’s pretty clear — our justice system lacks the funding, supports, cultural awareness and programming options needed to try and meet the needs of the kids in (either) system.

The important logical inference is: if so many kids in the jails are CFS-involved, and there’s not enough of these urgently-needed things at hand for the justice system to lean on to try and help them, then there’s not enough in the CFS system either.

Anecdotally (I know it’s not evidence), as a journalist who tried diligently to cover youth-related justice matters as much as was possible (limited editorial interest), the systemic poverty was abundantly apparent. Readers only need look back in this blog’s archive a bit to see tales of how this played out in reality.

So, long story short, it’s about time this review happened. Kudos to the province for that. I worry it’s going to be limited in scope — but it’s not lost on me that a constitutional law expert is among those doing the review.

Here’s the issue: there’s a philosophical problem inherent that needs to be handled carefully.

Should the youth criminal justice system — even one with the overarching goal of rehabilitating kids —get directly involved with child-welfare system-related concerns? Should Crown prosecutors?

It may seem a pointless question, given that so many of the issues a youth justice court deals with are intrinsically linked to child-welfare matters of concern.

But the drafters of the legislation, which basically is the rulebook by which youth criminal justice is done, seem to have not wanted the two to meet.

In the 158-page YCJA, there’s but two specific references to ‘child welfare’ — one, that a court can make a referral at any point to a child-welfare agency to assess whether a young person needs child welfare services (the ratio of who makes up the system makes this tautological).

Two, that a child welfare agency with conduct of a child can access youth court records.

That’s it.

But yet, as Smandych and Corrado’s research suggests, if we’re truly interested in improving justice outcomes there’s no choice but to somehow get everyone playing the same sandbox:

“The related policy challenges are enormously complex because to a considerable extent potential solutions require the intensive coordination of a federal criminal law with a wide range of other federal laws (and programs) along with parallel provincial/territorial laws involving health care, mental health, housing, education, and employment.”

Not a small order — one could theorize that the YCJA could need rewriting to accommodate a new reality. That’s perhaps why the presence of a con law expert to conduct the review is intriguing.

In any event, we’ll see how that end plays out. It’s hard to envision any kind of workable solution to this problem that doesn’t involve vastly greater coordination and honest cooperation between Health, Families and Justice.

But it’s an urgent problem that concerns everyone, so I’m hopeful.

I suspect in large part it will come down to money (doesn’t everything?).

I repeat: open your wallet.

If the funding for early-years intervention and family supports are there ASAP, it’s possible to foresee a decline in youth crime over 12-15 years.

If funding for psychological, FASD, and addictions services are increased for the kids currently in the system, it’s theoretically conceivable we could start to see improved justice outcomes and lower recidivism in 10 years.

But the evidence is there, as it always has been: If we’re really going to make the system better and meaningfully intervene in kids’ lives — it’s going to take massive political will, innovation and cash.

A non-expert’s thoughts on things that may be helpful… 

• A lot of discretionary power in how youth cases get handled lies in the hands of the federal and provincial Crown prosecutions services. Maybe a close look at how the Crown’s roles and how that discretion is exercised could be revealing. Are cases that should get diverted being diverted? What’s the role of community youth justice committees these days? Should prosecutors be freed up in some way to focus on the worst of the worst violent crimes and young criminals?
• One of the big reasons kids spend time in jail is for breaches of bail or probation orders. A close look at court-ordered conditions and how kids are being set up to fail because of them may shed some light on how to reduce remand custody rates. But again, the breach issue is directly influenced by the quality of support systems for youth on bail or probation — overtaxed/ under-resourced is a common complaint.
• A study of youth Corrections and its needs could be helpful. There’s no point ordering a young person be supervised, abide by a curfew and get into counselling when there’s not enough corrections workers to be conduits for those services.
• One of the major issues that should arise too is social worker workload and their ability to show up to advocate for jailed kids. And, it must be said, that workers sometimes feel relieved when a client gets locked up because they’re in a so-called safe place, so urgency to see them out of custody can be limited. But that’s using the justice system for a child-welfare purpose, and currently not the way things are supposed to happen.
• Have we reached a point where a CFS “duty worker” should be present in youth court much like Legal Aid criminal defence duty counsel? That raises massive issues in itself, in terms of CFS agency coordination and information sharing. Not to mention such an idea would likely have to involve the (long-awaited) upgrade to the CFS computer system so that worker could access required information with ease. That’s perhaps upwards of a $100 million expense alone. Yikes.
• Always happy to hear your thoughts. -30-