Book Notes Ch. 8 - First Contact: Police and Diversionary Measures

Mediation

A form of conflict resolution that involves a third party, usually a person with professional skills, to assist two parties with a grievance or unresolved matter to reach a mutually agreeable solution

Diversion

A practice based on a philosophy that justice, rehabilitation, and reintegration are better served by keeping most people out of the formal justice system

Net widening

A tendency for policies seemingly designed to reduce the number of people in the justice system to inadvertently result in more people under state control

Alternative measures

A variety of programs under the YOA, such as mediation, designed to prevent future crime and divert youth from the courts

Necessary Criteria for Using Extrajudicial Sanctions

An extrajudicial sanction may be used only if: • It is part of a program of sanctions that may be authorized by the Attorney General or authorized by a person, or a member of a class of persons, designated by the lieutenant governor in council of the province • The person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society • The young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it • The young person has, before consenting to be subject to the extrajudicial sanctions, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel • The young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed • There is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence • The prosecution of the offence is not in any way barred at law

Reconciliation

An important component of the mediation/healing process, based on the belief that a productive response to crime is to encourage all affected parties to participate in conflict resolution

Racial profiling

Exists when racial differences in law enforcement surveillance activities cannot be totally explained by racial differences in criminal activity or other legally relevant factors

Objectives of Extrajudicial Measures under the YCJA

Extrajudicial measures should be designed to: • Provide an effective and timely response to offending behaviour outside the bounds of judicial measures • Encourage young persons to acknowledge and repair the harm caused to the victim and the community • Encourage families of young persons - including extended families where appropriate - and the community to become involved in the design and implementation of those measures • Provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation • Respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence

Extralegal factors

Factors affecting criminal or youth justice processing that are outside the jurisdiction of law

Surveillance

Mechanisms and processes by which the state keeps track of people and monitors their behaviour

Restitution

Payment in money or kind to compensate victims for their loss

Differential involvement

Refers to disproportionate minority police contact because of frequent criminal activity, involvement in serious crime, or persistent criminal offending

Differential treatment

Refers to disproportionate minority police contact because of systemic inequalities in the justice system or discriminatory practices by justice personnel, including the police

Discretion

The decision-making power that police and other criminal justice personnel (e.g., judges and Crown prosecutors) have to make decisions with minimal legal requirements

Stigmatization

The detrimental consequences for an individual of having a negative label or definition attached to his or her behaviour

Principle of least possible interference

The principle that whatever action is taken should have the least impact on a youth's freedom

Extrajudicial measures

Under the YCJA, refers to processing accused young offenders by means other than through the youth or adult justice system

Extrajudicial sanctions

Used under the YCJA when cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs

High-risk youth

Youth with characteristics and/or living circumstances that are known to be criminogenic

Extralegal Factors Affecting Police Discretion - Police Departments

• 1970s study: considerable variation in charges by city • Under the JDA, there were no restrictions on police discretion • Since the YOA, the amount of discretion used by a police officer is limited by law, as in the case of diversionary measures under the YOA that restricted these options to first-time offenders • Decisions to charge vary depending on whether individual police departments have developed their own diversionary programs • Also limited by provincial policies and the policies of the departments and municipalities within which officers do their work, as well as by the attitudes and characteristics of individual officers • Some Canadian police departments have adopted risk-management programs for high-risk youth in their jurisdictions (more intensive police supervision of a youth and his or her family and can last as long as two years) • When improvement is not apparent, the youth graduates to a more intrusive surveillance program (e.g., Police Attending Youth aka PAY - more intensive investigation of the youth's activities, recordkeeping, and coordination of efforts toward criminal prosecution and appropriate sentencing) • On the other hand, many police departments and RCMP detachments have developed programs that are designed to enhance successful diversion and reduce criminalization (e.g., Operation Help) • Operation Help: outreach program that involves a team consisting of three police officers, a lawyer, a social worker, a street outreach worker, a former sex-trade worker, an Aboriginal elder, an Aboriginal court worker, and a worker to do follow-up

Police Contact and Decision-Making

• A majority of youth crime comes to police attention through complaints • Police have a considerable amount of discretion in making decisions about how to proceed with youth who are suspected or accused • YCJA: police officer is required to consider if warning or cautioning a youth is sufficient (section 6(2) however suggests that it is not a violation of youth's legal rights if the police fail to do so) • Sections 7 & 8 allow provinces to formalize these warnings and cautions • Officer has the power, freedom, and autonomy to choose from a number of courses of action: 1) Issue a warning (formal or informal) to the young offender about his or her behaviour and then let the person go 2) Arrest and hold the youth in police custody (parents/guardians must be notified) 3) Take the young person to the police station for questioning before releasing her or him 4) Write up a report on the young person before release 5) Charge the young person with an offence 6) Release the young person with conditions 7) In some provinces, refer the young person to a diversionary program or youth justice committee; or 8) Hold the young person in detention (max 24 hours) for further judicial processing, beginning with a "bail" hearing • Police surveillance of youth is disproportionately high compared with surveillance of adults (this discrepancy does not necessarily translate into high rates of criminalization) • Most criminal cases involving young offenders are handled informally • The YOA did result in dramatic increases in the formal charging of young offenders, which suggests a substantial decrease in the use of discretion by police with youth • 1990s: there was little change in the rate of informal case handling by the police • In the last year of the YOA, four in ten youth (44%) accused by police were handled outside the formal justice system • Sections 6 to 8 had an impact on police charging practices • The rate of youth charged by police decreased by 16% in 2003, the most significant decrease since the introduction of the YOA • 2003: 55% of accused youth were not processed through the court, and this increase continued to 2006, when almost six in ten youths (58%), were informally processed by the police or Crown • Rates of informal processing began to shift in 2008, when the proportion of youth not formally processed was closer to 2003 levels (56%), and the rate has remained the same since then • Most informal measures reported by the police involve verbal warnings, and the remaining few are referrals to a community-based program or agency, formal cautions, or formal referrals to diversionary programs or committees • Research: there are legal and extralegal factors associated with police discretion • Legal factors: legal requirements or to things generally considered relevant or pertinent in criminal justice matters • Extralegal factors: those that are not necessarily or usually considered legitimate or relevant in justice decision-making

Extralegal Factors Affecting Police Discretion - Demeanour and Race

• A youth's appearance and attitude, and how that youth behaves with a police officer, will influence how the officer will use her or his discretion (youth who fit a stereotypical image of delinquents - who exhibit a disrespectful, uncooperative, or defiant manner - are more likely to be arrested) • The significance of demeanour depends on the seriousness of the offence, but also on race • African American youth expect the worst from police and therefore are more likely to behave in a defiant manner. Police, in turn, see African American youth as more threatening and hostile than other youth • Nearly 3/4 (71%) of the police reported that a youth's demeanour is an important factor, particularly in relation to a decision to use diversionary measures • Young people, regardless of colour, believe that Black youth are a focus of police harassment • Native youth in cities tend to be located in areas where there are high levels of policing, thereby increasing their chances of arrest • Some police hold stereotypical views of Native peoples (relationship between negative attitudes toward Native peoples and a fear of crime) • The Aboriginal Justice Inquiry of Manitoba reports that Aboriginal youth have more charges laid against them, are more likely to be held in detention prior to court, and are more likely to be denied bail • When other legal and extralegal factors that are known to be related to charge rate differentials were controlled, the effect from Aboriginal status remained (charge rates were significantly higher for Aboriginal youth than for non-Aboriginal youth) • All else being equal, Aboriginal youth are 12% more likely to be charged by police than non-Aboriginal youth

Introduction

• A youth's involvement with the justice system begins with a police investigation to determine whether an offence has taken place • The police or the Crown have the option in most provinces to divert youth from the courts through extrajudicial measures provisions in the YCJA, a practice dating back to the Juvenile Delinquents Act era that was first formalized through alternative measures provisions under the YOA • Diversionary provisions became more formalized with the YCJA - while the YOA provided for diversionary programs and regulations around their use, the YCJA also encourages police to consider issuing a warning for first-time offenders involved in non-violent offences (created an additional level to diversion)

Extralegal Factors Affecting Police Discretion - Race

• Both legal and extralegal factors are related to race • Minority youth are more likely to be arrested by police and to have a record (suggests that being of a minority race may very well be a more important factor than having a police record) • Reasons for race differential in police processing is not clear • Police may be biased • Whether a case proceeds to court has a lot to do with complainants and their wishes (African American youth may have higher arrest rates because complainants are less likely to ask for leniency in their cases) • More than half(56%) of the police in their survey reported that victim preference was an important factor in their decision to lay a charge • One important factor: demeanour

Extralegal Factors Affecting Police Discretion - Age and Gender

• Early research showed that girls were treated more leniently than boys • Gender differences in charging depend on type of offence • Police are more likely to respond harshly to girls involved in minor offences, but less likely to arrest girls for more serious offences • Police were reluctant to arrest female suspects who behave in stereotypically feminine ways, such as crying • Girls who did not adhere to middle-class behavioural standards for a traditional female were not afforded leniency or chivalry by police officers • Boys are more likely to be charged than girls but that differences disappear when legal factors are taken into account • Age also has a bearing on police discretion in that younger girls seem to be treated more harshly • Police were more likely to arrest younger girls, but that age had no bearings on their use of discretion with respect to boys • Age seems to be more important than gender • Age differences overall are certainly reflected in Canadian crime and court statistics: Charge rates and rates of youth going to court are higher for older youth, but the opposite is true for girls when data is available by gender • Younger girls are more likely charged and to go to court than are younger boys, and the converse is also true: older girls are less likely to be charged and to go to court than are older boys • Shoplifting charges: most often levied against girls and which have a high charge rate compared with other offences • 17-year-olds are twice as likely to be charged as 12-year-olds, all else being equal • Charge rates are also exceedingly high for prostitution offences

Extralegal Factors Affecting Police Discretion - Class and Marginalization

• Evidence can only come from research (results are mixed and not recent) • Hagan, Gillis, and Chan: police attitudes toward or perceptions of crime-prone areas, coupled with citizen complaints, were strong predictors of delinquency rates (actual class differences in the experiences of juvenile crime are amplified by underclass housing conditions and complaint practices and even more so by police perceptions) • Ericson: young men of lower socio-economic status are disproportionately stopped, searched, questioned, and recorded (they are referred to in police culture as "pukers" - people requiring extra surveillance) • Sampson: social class, race, and having delinquent friends accounted for roughly one-third of the variation in police responses to youth • Research on homeless youth in Canada confirms high rates of criminal activity compared with domiciled youth (largely understood as situational) • Increasing concern: the criminalization of homeless youth through the growth of repressive enforcement measures • Increasingly, in response to pressures from business groups and public complaints, municipal governments are targeting survival behaviours of homeless youth and passing legislation and implementing policies that are designed to increase police surveillance and thereby further the marginalization and criminalization of homeless youth (e.g., Ontario Safe Streets Act)

Principles of Extrajudicial Measures Under the YCJA

• Extrajudicial measures are often the most appropriate and effective way to address youth crime • Extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour • Extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence • Extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who (1) has previously been dealt with by the use of extrajudicial measures, or (2) has previously been found guilty of an offence

Diversionary Measure Issues - Mediation, Reconciliation, and Conferencing

• Major problem in mediation programs concerns the role of victims • Successful mediation requires the participation of both the accused and the accuser, but many victims of crime are reluctant to face the accused • It is equally difficult for an accused to face her or his accuser and the most important part of the healing process is for both parties to come to see each other as people - to understand why the incident occurred and how each person - and the incident itself - affected and continues to affect the other • Solution to this dilemma: use the victim's supporters in sessions or a volunteer who assumes the victim's role • Many businesses, particularly large department stores, will not participate in mediation programs, arguing that it costs them too much to take employees away from their job • Some stores have even launched civil suits against offenders by sending a bill for their costs (thus, offenders who have accepted responsibility and paid for their offence according to the justice system face a potential civil penalty as a result of action by the stores - the legality of this practice has been successfully challenged in court by some adult offenders) • In general, victims and offenders who have participated in mediation programs report a high level of satisfaction (78 and 74%), while negotiated arrangements were acceptable to both parties (92%) • Issues associated with the application and implementation of restorative justice principles in general and conferencing, in particular, are more numerous and complex • There are problems associated with the statutory imposition of restorative justice that stem from attempts to implement restorative justice principles within a retributive model of justice (here, the issues revolve around attempting a healing process) • They are relatively cost-effective compared with a reliance on institution-based program delivery • The YCJA emphasizes that timely interventions and processing are important aspects of meaningful consequences of youth, and governments have place restrictions on the time frames for EM and ES • One of the most critical issues associated with conferencing interventions is the matter of shaming (while shaming could be a powerful tool for reintegration, it could also, if not used appropriately, have a disintegrative effect) • Difference between reintegrative shaming and disintegrative shaming is highly significant for conferencing outcomes • From a restorative perspective and for healing to occur, shaming, as a self-derived emotion, should be experienced through a process of reflection on hearing the thoughts and experiences of others • There is an opportunity in restorative conferencing for all participants - the collective, not just the offender - to feel this emotion (in these cases, the collective assumes responsibility for healing; it is not the responsibility of the offender alone) • Disintegrative shaming = in a retributive model, shaming is a punishment, something done to the offender • Disintegrative shaming is counterproductive to the principles of restorative justice and conferencing in a variety of ways o It may exacerbate violence, precisely because punishment is intended to generate feelings of shame and humiliation • Conferencing based on motives of punishment can, in and of itself, inadvertently induce offenders' needs to respond to humiliation in defence of their honour, as can agreements that are overly punitive (this can be particularly acute for youth who have already been humiliated by adult authority) • Disintegrative shaming also violates principles of restorative justice and is counterproductive to healing to the extent that it places participants in the position of being active agents in harm-doing • The idea of shaming is appealing to those adhering to a retributive model of justice and looking for punishment (a cultivation of empathy is perhaps a more effective and positive goal of conferencing than shaming, precisely because empathy is a concept that is not so conducive to punishment)

Diversionary Programs

• Mid-1900s: alternative measures programs involved 3 types of programming • Reconciliation/mediation o Offenders and victims are brought together (apologies and the writing of essays or letters) • Retributive/restitutive o More punitive, involving restitution through such things as fines, financial compensation to victims, or community service • Rehabilitative/educational o e.g., StopLift Education Program (anti-shoplifting program for young people involved in petty theft) • There has been little change from alternative measures programs to programming offered through extrajudicial sanctions in areas where programs were designed to address the underlying circumstances of the offence • Mid- to late 1990s: restorative justice principles had gained some prominence, and programs based on these principles began to develop • Wit the YCJA's emphasis on reintegration, victim involvement, and harm reduction, there is now a greater emphasis on, and proliferation of, programs that facilitate greater involvement of victims and community members (these programs usually involve meetings of the offenders, their supporters, the victims and/or their supporters, community members such as a police or school representative, and a trained community facilitator - the purpose of the meetings is to develop a reparation agreement and promote restoration from the harm done by the behaviour of the young offender) • Fourth type of program has emerged - restorative interventions (vary in their focus and can involve community conferencing, family conferencing, or healing circles - e.g., Valley Restorative Justice Society in Nova Scotia) • The RCMP played a major role in the implementation of family group conferencing across the country (these community justice forums were consistent with the force's philosophy of community policing and so adopted community forums as its "preferred restorative tool") • Police continue to play an active role in diversion as gatekeepers to programs and as supporters of community-based justice across the country (police work becomes peacekeeping and is an important and vital component in the creation of peaceful communities) • Usually, provincial governments managed referrals to alternative measures programs, through either social services or correctional services departments, and they are continuing to do so for extrajudicial sanctions (the programs are implemented by social agencies or specially mandated agencies such as the Community Justice Society in Nova Scotia) • In some provinces, administration is shared • One of the key differences in the implementation of diversionary measures stems from the distinction between pre- and post-charge referrals • In most provinces and territories, the police are the gatekeepers to referrals for ES; they make the first decision to refer to the Crown or justice committee • The YCJA affords youth the right to consult with a lawyer before agreeing to an EM or ES referral to a program, as well as the right to refuse to participate in any aspect of EM or ES and insist that the case go to court • In most provinces, youth who fail to comply with EM agreements, contracts, or programs are referred back to court, but pre-charge referrals are not

Diversionary Measures

• No specific provisions for diversionary measures were included in the JDA (young people were kept out of the justice system solely through the exercise of police or prosecutorial discretion) • 1970s: labelling theory raised concerns about stigmatization + critical theorists raised awareness of the criminalization that often results from formal processing in the justice system) • Consequence: development of numerous programs aimed at diverting young people from the formal justice system (e.g., Youth Protection Act in Quebec) • Alternative measures complemented by the principle of least possible interference • while diversion as alternative measures is not a formal principle of youth justice in the YCJA, both the principle of diversion and the concept and practice of alternative measures have now been formalized to an even greater degree under the concept extrajudicial measures • Extrajudicial measures with extrajudicial sanctions • It actively promotes the diversion of youth from formal police processing and the courts and also provides a framework for the implementation of restorative justice principles • The concept and philosophy of alternative measures = Extrajudicial measures (broader concept with principles and objectives + allows police to issue warnings or cautions or to refer the youth to a community program) • Alternative measures program = Extrajudicial sanctions (provides for specific sanctions and rules regarding their use) • Together, they create a two-tiered diversionary structure of informal and formal measures and sanctions • After the YOA was implemented, all provinces eventually had alternative measures programs • Extrajudicial measures in the YCJA, given their similarity to alternative measures provisions in the YOA, seem to be following the same practices, except that there is more use of police-based diversionary programs and Youth Justice Committees • One change implemented by some provinces is the use of a "Crown Caution" (applies to first-time offenders involved in property offences where restitution was not an issue - a letter is sent to the parents by a Crown attorney, advising them of their child's involvement in the offence and explaining that the decision has been made to leave the imposition of consequences to the parent)

Diversionary Measures Issues

• Police accountability • Net widening • Consistency and accountability • Mediation, reconciliation, and conferencing • Administration, control, and inequality of access

Research Summary on Police Discretion

• Police departments vary considerably in their policies and practices with respect to release or referral of people with whom they have contact • Most youth apprehended by police are apprehended as the result of citizen complaints, rather than police initiative • Police handling of serious offences is based chiefly on legalistic criteria, rather than on social class or racial distinctions • With less serious offences, decisions to arrest are based principally on complainant preference, but what is defined as offensive behaviour is influenced by other extralegal factors • 4 most significant factors: offence seriousness, previous contacts with police, a young person's demeanour when apprehended, and the victim's request

Diversionary Measures "Fast Facts"

• Police use of extrajudicial measures (EM) increased from 55% of all cases in 2003 to 58% in 2006 and declined from then to 56% in 2011-12 • Since the YOA, police detentions have increased from 45% of arrested youth to 55% • Police are more likely to detain youth with prior convictions or prior police contacts and for breaching a probation order and other administrative offences • Police are detaining youth charged with less serious offences and less serious histories more now than they did under the YOA • Among extralegal factors, victim preference, parental attitudes, and youth demeanour are important factors in police decisions to lay a charge or use EM • Under the YCJA, police detain more youth, release more youth on undertakings, impose more conditions, and charge more youth with breach of those conditions than under the YOA • In deciding whether EM would be sufficient to hold a youth accountable, police look to a youth's display of responsibility and remorse • The police view is that they engage in criminal profiling, not racial profiling • There is consistent evidence from a number of police jurisdictions in Ontario to conclude that racial profiling exists • Net widening is a major issue associated with EM, followed by issues of police accountability in decisions to release with conditions or detain, as well as issues of control and inequality of access

Diversionary Measure Issues - Consistency and Accountability

• R. v. T.(V.) (1992): decisions regarding referral to extrajudicial sanctions are almost entirely a matter of prosecutorial discretion and, with the exception of extremely limited circumstances, are not subject to a court review • The problem is that no one is publicly accountable for these decisions • "non-transparent discretionary decisions" • Unlike judges, prosecutors are not required to justify their diversion decisions in open court; therefore, there is no way to assess if a decision to divert or not and the specifics regarding the imposition of sanctions are appropriate, fair, or even consistent with other similar cases • Bill C-10 changes to detention regulations and police record-keeping will exacerbate the already existing lack of accountability regarding police decision-making and push youth further into the system - as a result of sanctions that arise even before a finding of guilt or sufficient evidence for formal charges • These informal sanctions often involve lawyers working out EM arrangements without input from probation officials, who know from experience what is reasonable to expect of a young person

Referral and Success Rates

• Rates of referral to diversionary measures vary across the country • Diversionary measures programs were highly successful under the YOA (the overall success rate across the country in 1998-1999 was 93%) • First-time offenders going through court had a higher rate of recidivism than those going through alternative measures programs (this pattern continued through the introduction of the YCJA) • We cannot assess if these high success rates are actually due to diversionary programs or the minor nature of offences that bring many youth to EM programs (youth may have been deterred from future involvement in crime simply by having contact with the police)

Diversionary Measure Issues - Net Widening

• Supporters: diverting offenders out of the youth justice system is in the best interests of both offenders and taxpayers (diversion prevents problems associated with reintegration after incarceration, reduces the risk of further criminalization associated with imprisonment, and provides an alternative to high-cost court proceedings and dispositions) • One could reasoning assume that many minor offences that would have been processed through alternative measures under the YOA will now simply receive a warning and that other offenders who might have gone to court will now receive a caution or an extrajudicial sanction • Critics: In the absence of diversionary measures, youth with a minor offence and no prior record would likely be let go with a warning (adding a warning letter amounts to formalizing procedures for those who would have been let go, particularly if this warning becomes part of a record - in the case of a Crown Caution, there is a record that can be used in future reports for sentencing) • Diversionary measures, particularly ES, are not an alternative to court, but rather an alternative to police discretion (discretion is merely shifted from police to the Crown prosecutor) • Because the YCJA specifies that extrajudicial sanctions may not be used if a youth denies participation in the offence or prefers to have her or his case addressed by the court, this particular type of net widening remains, and it may even be exacerbated by the more formal cautioning system • Because a failure to meet the conditions of EM or ES may result in a return to a court with new charges, youth who otherwise simply might have been let go with a warning may end up in the system for violations and facing a potential jail sentence • Police are likely to bypass formal ES processing because they then forfeit any say in sanctions and thereby lose control over the outcomes for any particular youth (real concern: while there was not a significant increase in he number of youth brought into the youth justice system in 2003, there were instances where net widening appears to have occurred in the use of extrajudicial measures programs) •The combination of pre-charge and post-charge diversion in any one jurisdiction creates a two-tiered system of diversion that produces a revolving door situation o EM as a pre-charge system is the first tier of diversion, but because of the discretionary latitude afforded to different professional groups in the system, there may be more than one round of diversion at this stage for any one youth o ES creates a second tier to the program, and it can start a second round of two or more diversions for the same youth • By the time a youth gets to court for something that may have begun as a minor offence, there is now a lengthy record and the potential for the youth to be seen as a loser, as someone who needs a crackdown • Some have questioned whether diversionary programs can be truly voluntary when the consequences of non-participation is for a youth to go to court • The success-failure rates of completing diversionary measures do not suggest any difference in success between programs with or without sanctions for non-compliance • The success rates reported for these programs are problematic because it is impossible to know if successes are due to the diversionary measures programs themselves or the fact that mostly minor cases - that is, youth who probably would not reoffend after police contact and warnings - are processed through diversionary measures • Some provinces and groups lobbied for changes to the YOA eligibility criteria so that more serious offences and offenders with prior records could be included in diversionary measures programs (YCJA does not preclude using extrajudicial measures for repeat offenders or even for youth who have prior convictions - it does restrict extrajudicial measures to non-violent offences) • Some of the reforms from Bill C-10 will widen the net by formalizing a link between extrajudicial measures and pre-trial detention (requires the police to keep a record of all extrajudicial measures actions that they take) - the requirement for police records of EM/ES actions with youth means near certainty that pre-trial detention figures will continue to increase

Youth Justice Committees

• The Youth Justice Committee concept was established by the YOA and is maintained by the YCJA • The YCJA is more specific than the YOA about the role and function of the committee and, unlike the YOA, does not require Youth Justice Committee members to perform their duties without remuneration • Functions of a Youth Justice Committee: o Give advice on appropriate extrajudicial measures o Provide support to victims and facilitate reconciliation between young offenders and their victims o Ensure community support is available to youth o Help coordinate youth services with activities of the justice system o Advise federal and provincial governments on the justice system's compliance with the act and various policies and procedures of youth justice o Provide public information on the act and the youth justice system • The definition of Youth Justice Committee is vague that it includes a variety of activities that involve family group conferences, community/neighbourhood accountability panels, victim/offender mediation/reconciliation sessions, multidisciplinary case management conferences, and Aboriginal sentencing and healing circles • Youth Justice Committees were underused in most of the country under the YOA, but with the YCJA and its emphasis on reintegration and the growth of the restorative justice philosophy these committees are being increasingly used • Youth Justice Committees have been used extensively in Manitoba, Alberta, New Brunswick, Newfoundland and Labrador, and the Northwest Territories for some time, most often in Aboriginal communities • Manitoba and Northwest Territories: under the YCJA, a community youth justice team receives all Crown referrals and makes decisions on an appropriate ES program • Alberta and New Brunswick: probation officers decide whether to use a Youth Justice Committee to decide on an appropriate ES program • BC: uses Youth Justice Committee in a citizen advisory capacity rather than for EM; Ontario has a similar arrangement • South Island Tribal Council program - a young person who has committed an offence meets with members of the Tribal Court and a diversion coordinator

Diversionary Measure Issues - Administration, Control, and Inequalities of Access

• The issue of administration and control concerns the role of the community in deciding who is diverted and when, and how committed governments are to providing resources for community-based diversionary measures programming • The overriding issues here with regard to youth justice are inequality of access to diversionary programs and who controls who goes where • Some provinces are firmly committed to community involvement in youth justice processes and have established Youth Justice Committees as active participants in diversionary measures programs; in some Aboriginal communities, the committees operate as a sentencing circle • The control and autonomy afforded to community committees will vary not only by province, but also within provinces • Mediation programs can be either community-based or justice-based • Only community-based mediation - in circumstances where disputes are handled by community committees before police involvement - is truly diversionary (e.g., Community Boards Program in San Francisco) • The legal profession is the main opponent of community-based programs o Its opposition stems from concerns about people practicing law who are not qualified to do so • Justice-based system of mediation has its own major weakness - namely, that program success depends on an acceptance of diversion philosophy on the part of individual police officers, Crown prosecutors, and their departments • Government has driven and controlled the growth, structure, and implementation of youth justice services, leaving little opportunity for communities to challenge discrepancies with what they would like to accomplish • Some communities would like to address more serious offences through EM but are prevented from doing so by legislation and provincial policies • Offences appropriate as warning offences: o First-offence property crimes (under $5,000) o Motor vehicle theft o Provincial statute offences o City bylaw offences o Possession of housebreaking instruments o False pretences o Simple possession of stolen goods • The department considers second offences after a previous warning or caution, along with more serious first offences (common assault, mischief, theft over $5,000, arson, break and enter, communication for the purpose of prostitution, possession of weapons, and public mischief) as being appropriate for EM and ES • Excludes the following offences from ES diversion: o Use of a weapon o Violence against a person o Child sexual abuse o Perjury o Driving while disqualified o All family violence cases o Any offence other than Criminal Code ones • Under the YOA, there was considerable variation between types and number of alternative measures programs offered across the country, including variation within provinces and in diversion rates by police departments (also variation in diversion rates and programs by regions - not all young offenders had access to the same services) • The most common problems cited by provincial and territorial officials for offenders are a lack of diversionary measures programs and specialized services, difficulties in getting to appointments and accessing services, and removal from families and communities • The major problem cited in regard to diversion programs is the "in-between" cases, those requiring more than police warnings and something less than custody • It is also difficult to find supervisory-level employees within local populations and it is equally difficult to attract and keep professionals in isolated communities • There is also a high burnout rate and rapid turnover of workers • Availability of resources for Aboriginal youth • None of these access issues are likely to change under YCJA provisions for extrajudicial measures, because provinces maintain control of the administration of extrajudicial measures, including its programs • Provinces currently working toward implementing restorative justice principles in the youth justice system have been provided more latitude to do so with the YCJA • The YCJA also assumes that all communities have an equivalent capacity to create and deliver services (rural and isolated communities expressed concern that this increased emphasis on diversion in the YCJA would place an even greater burden on their struggles to deliver diversionary programs because of increased number of youth requiring services and a change in this population to youth who present more serious needs • Those who work in the youth justice system have reported that the YCJA expands options but it also makes the community take a stronger role and if communities can't deliver, it will be a problem

Legal Factors Affecting Police Discretion

• The seriousness of the offence and prior arrest records influence police decisions to lay a charge • Another important factor: youth's "display of responsibility and remorse" - this is most important to police as an indicator of whether extrajudicial measures would be sufficient to hold a youth accountable • Police are now more likely to detain youth who have prior convictions and who have previously breached a probation order • There are also legislative regulations affecting police discretion (ss. 195 - 503 of the Code provide broad authority for the police) • The major decision from the point of view of the youth is whether police decide to detain them or release them with a "promise to appear" or an undertaking that specifies conditions, the violation of which will result in additional criminal charges of "failure to comply • These conditions include remaining within a specified territorial jurisdiction, abstaining from alcohol and drugs, reporting at specified times to a police officer, and any other condition that the police officer considers necessary • The YCJA regulations regarding custody and detention were written for judicial decision-making and are not specifically directed to the police • Police are expected to comply with these principles, especially the principle of least restrictive alternative, as well as the general principles of the YCJA laid out in s 3(1)

Extralegal Factors Affecting Police Discretion - The Evolution of the Racial Profiling Debate

• There are no official federal statistics on race and crime because human rights organizations have objected to the collection of justice statistics by race • Black youth are four times more likely to be stopped by the police, and Aboriginal youth are 1.5 times more likely • Asian and South Asian students were less likely to report being stopped by the police • Students coming from poor family backgrounds, single-parent homes, or public housing were also more likely to report being stopped by police • Black respondents are more likely to view racial profiling as a major problem in Canada, while white and Chinese people view it as a "useful crime-fighting tool" • Police culture offers a "deflection rhetoric" to neutralize claims of racial profiling, a view that basically sees profiling as an integral part of police work • "Carding" refers to the Field Information Report (FIR), form 308, compiled by Toronto Police officers through "street checks", whereby individuals are stopped as pedestrians or in their vehicles and questioned about personal information • This FIR contains information about the person stopped, such as age, gender, race, name, family status, and associations with other stopped persons, as well as details about the stop (stored in police database indefinitely) • Black people were three times more likely to be stopped and carded than white people • Young Black men aged 15-24 were stopped and documented 2.5 times more than white youth the same age and were more likely to be involved in street checks when no arrests were made • Differences between Black and white carding rates were highest in more affluent, mostly white areas of the city - "out of place" phenomenon (Wortley) • Carding and racial profiling became a major human rights and public issue in Toronto that has implications across the country (issue begins with the Canadian government's unofficial ban on the collection or dissemination of race-based crime statistics) • Without these statistics, Canadians have no way of examining the system for racial disparities and no opportunity to address racial bias and discrimination • In the absence of such "hard" statistical evidence, courts and police are not accountable because they are able to deflect allegations of racism

Extralegal Factors Affecting Police Discretion - Explaining Disproportionate Minority Contact with Police

• Two dominant explanations: differential involvement and differential treatment • Fitzgerald and Carrington used National Longitudinal Survey of Youth and Children data on 12- to 17-year-old youth self-reported delinquency and police contact • 4 major findings: 1) Youth identified as being part of the Aboriginal, Black, and West Asian racial/ethnic category were three times more likely than other youth to report having contact with police in the past year 2) The differential involvement hypothesis was not supported. While high-risk minority youth were more involved in delinquent behaviour and the chances of police contact were higher for violent offences, higher police contact was also reported by minority youth involved in property- and drug-related delinquency 3) There was no evidence to support the differential treatment hypothesis when measured in terms of high risk factors such as low income, poor parental supervision, and high-risk/unsafe neighbourhood 4) There was evidence of disproportionate minority contact with police among minority youth who were not involved in violent criminal activity that could not be explained by high risk factors • Their findings are consistent with Wortley and Tanner's in that disproportionate minority contact with police is due to racially discriminatory policing and is most evident among youth who should be least likely to come to the attention of the police

Diversionary Measure Issues - Police Accountability

• Two important issues that stem from police diversionary practices (centre on the role of police in contributing to the criminalization of youth): o The increased use of detention o The impact of release conditions • Under the YOA, police detention figures were high, averaging 45% of arrested youth, while under the YCJA, police are detaining 55% of arrested youth • Whether a youth is detained varies considerably by jurisdiction (range 28-79%), and this differential was explained by local practice rather than by differences in legal or extralegal characteristics of the offence or offender • On a case-by-case basis, the legal factors determining police decisions to detain are serious of charge, number of charges, and prior offences • Charges more likely to result in detention are indictable drug and violent offences, at 84 and 76%, respectively, and administrative charges (excluding breach of probation), 73% • Among extralegal factors, unconventional living arrangements and no fixed address (homeless) increase the probability of police detention • Under the YCJA, police are also more likely to detain youth charged with less serious offences and who have a less serious offence history • Police decisions to detain are framed by the Code and the YCJA, but rules and procedures for the use of custody do not apply specifically to police • Charges for administrative offences rose under the YOA and continue to remain high with the YCJA • Police exercise very little discretion in charging youth with administrative offences, to the extent that these types of charges increased 600% under the YOA • A major reason for this increase: the creation in 1986 of a new charge, failure to comply with a disposition, which was part of the YOA and was retained under the YCJA (this charge was administratively superior to the Code charge of breach of conditions because it did not require a return to court for a sentence review - police could simply charge youth who they thought might be in breach of probation or release/bail conditions with a new offence) • Widened the net of control in 2 ways: o It moved youth so charged further into the system by adding to their record of offences o It increased their chances of a custody sentence • Beyond this legislative change, police contributed in a major way to the epidemic of administrative offences and continue to do so (not only have police created this epidemic through charging high numbers of youth for administrative offences, such as breach of conditions or failure to comply, but they set youth up for additional charges by imposing conditions on their release and by the nature of the conditions) • Most common release conditions imposed by police: o Non-association with specific individuals (36%) o Curfew (34%) o "No go" - restrictions on places/areas (26%) o Keep the peace, be of good behaviour (24%) o No alcohol/drugs (19%) o Attend school (6%) o No weapons (2%) • The most commonly breached conditions that led to police charges were "keep the peace and be of good order", "obey the rules and discipline of the home or approved facility", and "reside at an address approved by the youth worker" • Residing at an approved address was something that girls were far more likely to be convicted of and is a further indication of paternalistic attitudes of the police and the courts toward girls in the system • Obeying rules and discipline was a condition resulting in significantly higher convictions for younger youth • These types of conditions are clearly difficult for youth to comply with and result in the costly sanction of custody • Under the YCJA, police detain more youth, release more youth on undertakings, and impose more conditions on their release than they did under the YOA - and that they then charge more youth when they violate those conditions • In this way, police discretionary decision-making is in direct opposition to the YCJA's stated objective to reduce the use of custody

Extralegal Factors Affecting Police Discretion - Family and Community

• When parents are interested in and concerned about their children's behaviour and appear to be cooperative with police, their young offender child is more likely to be given a warning • When a community has youth centres, safe houses, and other facilities offering programs or safe living space for young people, then police have choices (community options are particularly important in cases where parents are less than interested in their children's behaviour or well-being) • Extrajudicial measures programs affect police decisions to the extent that police have a choice other than total release or processing through the justice system • This may lead to more police charges • When parents minimized the seriousness of the situation or denied that their son or daughter could have committed the crime or wanted nothing to do with the young person, police were more likely to lay a charge, release the youth on strict conditions, or detain her or him for a bail hearing • Defence lawyers' concern: parental involvement at the police station may be problematic - parents often act as interrogators and make their child give a statement that has negative consequences for the youth •