Le mineur sujet de droit et la justice pénale : du « meilleur intérêt » à l’aliénation

Abstract

The recognition of the rights of young offenders under criminal law is a recent development and can be traced to the emergence of the Young Offenders Act of 1982, as part of the larger neo-liberal movement in Canadian youth justice policy. Through an analysis of the transformation of the rights of youths, in conjunction with several focus groups undertaken with young offenders, the authors discuss the emergence of youth as a subject, rather than an object, of rights. The ability of the young person to exercise the power that accompanies those rights appears to be limited by the arbitrary bureaucracy of the criminal justice process and by successive amendments to the law. In effect, while a youth's right to be heard is firmly entrenched in statute, the confusing and overwhelming nature of the court experience serves to alienate many youth and forces them to feel that they are, in effect, objects of the system, rather than autonomous subjects. Thus, in spite of neo-liberal discourses regarding the changing nature of the role of youth in criminal law, youth are in fact hardly liberated from the paternalism of the system, but rather continue to be held hostage by its limitations. Although under the Youth Criminal Justice Act, in theory, youth continue to be a “subject” of rights, in practice, the exercise of those rights is impeded by the constraints of the new law and expansion of extra-judicial measures.