Crown Decision-Making Under the Youth Criminal Justice Act
Description of the Courts (continued)
This and the next section describe the total sample: 16 charge approvals (in B.C. courts only), 49 bail cases, 19 referrals to Extrajudicial Sanctions and 46 submissions to sentence. The sample is evenly divided between Saskatchewan and British Columbia, 66 decisions in the former and 64 decisions in the latter province.
To the best of her ability, the on-site researcher attempted to determine what information Crown prosecutors were using in making their decisions. It is likely, however, that the estimates of verbal exchanges are low since interaction may have occurred outside of the period of observation and/or some Crowns may have forgotten or not reported discussions with other system personnel and other actors.
Table 1 shows the written and verbal sources of information that were obtained during the field work. Social reports such as pre-sentence reports were about twice as likely to be available to the Crown in B.C. as in Saskatchewan. Exchanges between the Crown and defence, and the Crown and youth workers, were more common in British Columbia. Part of the reason for this finding may be the location of the Crown's offices: in the B.C. youth courts observed, the offices were in the same building as the court, thereby easing the opportunity for interaction. Bail program staff were more likely to have verbal exchanges with the Crown in Saskatchewan, presumably because they are routinely present in the youth court and the Crowns rely on them for bail assessments. Overall, there was no significant jurisdictional difference between the number of information sources available to prosecutors; just over one-half of the observation sample had two or more sources of information (other than the police report).
|Estimated frequency of||Saskatchewan||B.C.||Total sample|
|Pre-sentence report available (earlier or current)*||15.4 % (65)||31.9 % (47)||22.,3 % (112)|
|Medical-psychological report available (earlier or current)||6.2 % (65)||12.8 % (47)||8.9 % (112)|
|Interaction between Crown and|
|Defence counsel*||46.8 % (62)||66.0 % (47)||55 % (109)|
|Youth worker/probation officer**||18.0 % (61)||41.7 % (48)||28.4 % (109)|
|Bail program workers**||17.7 % (62)||2.1 % (48)||10.9 % (110)|
|Child protection workers||8.1 % (62)||8.3 % (48)||8.2 % (110)|
|Parent or guardian e.g., foster parent||13.1 % (61)||20.8 % (48)||16.5 % (109)|
|Other personnel e.g., other Crown prosecutor||6.3 % (63)||6.3 % (48)||6.3 % (111)|
|% of cases where 2 or more persons had exchanges with the Crown||25.0 % (64)||36.7 % (49)||31 % (113)|
|Total sources of information:||Column percentages|
|None other than police report, prior record data||25.8||14.6||20.9|
|2 or more sources||50.0||60.4||54.5|
|Total percent||100 %||100 %||99.9 %|
Approximately one out of four cases was female and the average age was 15.5 years (Table 2). In the total sample, almost one-half of cases were of Aboriginal background. In Saskatchewan, almost two-thirds of cases were Aboriginal.
One-third to about one-half of the samples were termed out of control, substance abusers, neither attending school nor working, not living with a parent and said to have some involvement with the provincial child protection agency. The differences between Saskatchewan and B.C. should be viewed with great caution, however, because the prosecutors in B.C. had greater access to pre-sentence and medical-psychological reports than did those in Saskatchewan. In other words, the higher incidence of “problematic” behaviour or home situations in B.C. may be an artefact of the more detailed information available to Crown counsel in the B.C. courts.
|% female||25.8 % (66)||21.9 % (64)||23.8 % (130)|
|% 16 or more years of age||50.8 % (63)||54.8 % (62)||52.8 % (125)|
|Average age||15.4 years||15.5 years||15.5 years|
|% Aboriginal**||65.5 % (58)||27.1 % (48)||48.1 % (106)|
|% labelled out of parental control||35.1 % (37)||55.6 % (36)||45.2 % (73)|
|% alleged substance abuser*||25.8 % (66)||47.9 % (48)||35.1 % (114)|
|% "inactive", neither attending school nor working||27.3 % (44)||43.9 % (41)||35.3 % (85)|
|% not living with parent(s)*||37.7 % (61)||58.3 % (48)||46.8 % (109)|
|% prior or current involvement with the child protection agency*||25.8 % (66)||50.0 % (48)||36 % (114)|
|% currently on probation*||22.7 % (66)||46.0 % (63)||34.1 % (129)|
|% with 1 or more prior Alternative Measures**||37.7 % (61)||6.3 % (48)||23.9 % (109)|
|% with 2 or more prior Alternative Measures||9.9 % (61)||0||5.5 % (109)|
|% with prior findings of guilt||59.1 % (66)||60.3 % (63)||59.7 % (129)|
|Average number of prior findings of guilt||2.5 (65)||2.5 (57)||2.5 (122)|
|% with a prior custody sentence*||10.6 % (66)||29.2 % (48)||18.4 % (114)|
|% with 1 or more outstanding charge**||43.8 % (64)||16.4 % (61)||30.4 % (125)|
|Average number of outstanding charges*||2.1 (65)||0.7 (64)||1.4 (129)|
|Average number of current charges||2.7 (66)||2.0 (63)||2.4 (129)|
|Most serious charge at arrest :*||Column percentages|
|Indictable person or property||30.3||23.5||27.0|
|Victimless e.g., weapons||3.0||9.4||6.2|
|Breach of probation||10.6||32.8||21.5|
|Other administration of justice e.g.. non-compliance with bail||19.7||9.4||14.6|
|Total percent||100.0 %||100.1 %||100.0 %|
In British Columbia, most violations of bail are dealt with by way of section 524 of the Criminal Code, not by a charge; for the purposes of this analysis, however, bail non-compliance has been treated as a “charge”.
Almost one-half of the B.C. cases were currently on probation compared to less than one-quarter of those from Saskatchewan. Saskatchewan cases were more than four times as likely to have had earlier Alternative Measures/Extrajudicial Sanctions. This difference may be partly due to the use of pre-charge diversion in British Columbia – diversion by police may not have been noted in the case files. The samples were identical in their prior record: 60 percent had findings in the past and the average number of convictions was 2.5 per case. There was one important difference in their offence histories: 29 percent of B.C. but only 11 percent of Saskatchewan cases had a previous custody sentence.
Saskatchewan cases were much more likely to have outstanding charges and to have more outstanding charges than were those in British Columbia. The number of current charges did not differ. In terms of the most serious charge at arrest, a larger proportion of Saskatchewan cases had a hybrid property offence. Indictable offences were roughly similar in the two jurisdictions.
In sum, there were a number of similarities between the samples – in terms of sex, age, presence of a prior record, the number of prior findings of guilt and number of current charges. More B.C. cases lacked experience with Alternative Measures, were currently on probation and had past custody experience.
Most of the youth courts participating in this research are sufficiently small that Crown prosecutors, defence and other staff know each other. Many also know the accused from previous matters.
Collegial relationships among Crowns, defence and other court personnel were the norm. With the exception of one court, overall there was mutual give and take and even respect. Few defence complained about difficulties in engaging prosecutors in negotiations. A defence counsel remarked that prosecutors
“know the accused better because they work with their files constantly”.
“I don't have to reinvent the wheel each time the same kid comes to court.” When specifically asked, both Crown and defence respondents said that “incompetence” in their opposite numbers was relatively infrequent. However, a particularly opinionated defence lawyer said:
Some of the prosecutors are conscious of the social and family conditions that these kids might be facing and are conscious of the resources that are available that would help stop their criminal patterns. Others do not know. Those are the incompetent ones ( Saskatchewan defence).
In the youth court where relationships appeared somewhat strained, a Crown prosecutor said that defence counsel ranged from very to not very competent. To this prosecutor, some members of the defence bar lack knowledge of the legal issues, are unable to defend appropriately at trials, and were ignorant of the new legislation. A defence counsel in this court said,
“this is the worst Crown's office we've ever had, there is no collegiality, there is a big wall”. Another defence lawyer said that that there is an
“occasional” prosecutor who is not competent; those who fall into the latter group
“take cases very personally, take sides and don't want to see the whole picture”.
Proportionality, meaningful consequences, rehabilitation and the rights of the accused are considerations that youth justice personnel juggle with on a daily basis.
A substantial number of respondents said that the court, Crown counsel or defence counsel behaved in a paternalistic way towards young persons. Paternalism is associated with the pre-1984 Canadian juvenile court (“in parens patraie”) with its emphasis on the best interests of the child and its lack of due process and proportionality.
In their discussions of court orders, respondents mentioned that bail and probation conditions were not always in proportion to the legal characteristics of the case and that they were more intrusive that the offence warranted. A British Columbia defence counsel said that some judges in his court were
“more interventionist” than others and
“load kids up with more legal expectations [conditions], not just to sanction but to rehabilitate.” Other respondents said:
We are way overusing remand. Judges are encouraged to make kids do things like go to school, don't drink. They don't do it to punish but rather as a wise parent. Breaches [of these conditions] are what cause the kids to be remanded ( Saskatchewan defence counsel).
When we put kids on probation and they screw up, they get a bigger probation order where they are able to screw up more. And we feed the cycle (B.C. defence counsel).
The overuse of probation conditions inevitably results in breaches; then they get dragged back to court and then to jail. The new Act tries to address that, but judges are human and they still want to try to help the people that appear before them. In a lot of cases, it just sets the kids up to breach (B.C. defence counsel).
Defence counsel also said that some Crowns were paternalistic.
“The charge does not always connect with the conditions being sought. [The prosecutors] are trying to be protective or paternalistic towards youth.” The role of probation officers and other youth workers in establishing breach conditions should be examined in future research. One prosecutor told us that he agreed with the workers' recommendations
“80 to 90 percent of the time”. Another said
“we ask for these conditions [11 of them!] so as to rehabilitate.” Crowns may also rely on parents and other caregivers to find out how the young person behaves at home.
The distinction between paternalism and rehabilitation is not always clear. Is
“wanting to try to help” paternalistic or rehabilitative? If the conditions are unrelated to the offence or disproportionate because the offence is not serious and prior record minimal or non-existent, then we might conclude that paternalism is operating.
Paternalism was also mentioned outside of the context of burdensome probation and bail conditions.
Youth court is fairly paternalistic in its approach. The youth court tries to do much more than a criminal court. They get more into counselling and social work. That is both good and bad. Sometimes we may be fixing the problem with the wrong tool (B.C. defence counsel).
The philosophy of sentencing in a different B.C. court was described by a prosecutor as
“social working and paternalistic, giving the [youth] guidance”. In Saskatchewan, a Crown made a similar comment:
“our judges in youth court really truly want to do the right thing. Sometimes they act more like social workers than like judges.”
Defence lawyers were not immune from accusations of paternalism.
Being factually guilty and the Crown being able to prove it are two different things. There are different models of being defence counsel: there are those who look at it as a fight and then there are others who take the paternalistic model. [To the latter] running a technical argument of improper search is not sending the right message to the kid (Vancouver defence counsel).
The following differences between the role of defence in adult and youth court also imply that defence counsel may be as subject to the fine balance as are Crowns and the judiciary. In the experience of a Saskatchewan prosecutor, defence lawyers
recognize that youth court is a different animal than adult. In youth court the lawyer is a better able to control the client and be able to say ‘listen, you don't have a defence'. In adult court they're more on equal footing. In youth court a lot of the lawyers who work with the youth are interested in helping their clients and are better able to control them [than adults] and suggest what the smarter thing to do is.
In two communities, the courts were categorized by Crown counsel as “soft” or “too lenient”. For example,
“the judges in our youth court don't sentence appropriately, they're too lenient”. Later in the interview, this Crown said
It's good to get into the reason [for a serious offence], but sometimes the judges bend over a little too far backwards and there's too much focus on ‘poor Johnny' and not enough on ‘yes, poor Johnny, but he has to be accountable for his actions'. There is a lack of holding youths responsible and accountable.... I think there are certain judges who want to try and save the world. They want to be seen as politically correct and championing the right causes. They've lost touch with reality and the need for public protection (Saskatchewan Crown).
By no means all respondents termed the youth court paternalistic or excessively lenient. In a B.C. court, a defence lawyer said that the judges do not have paternalistic attitudes.
“Here it is more a sense of a social problem... closely aligned to the principles of the YCJA. ” Similarly, one Saskatchewan Crown said that in her court
“rehabilitation is the primary goal, getting at the root cause of offending behaviour”.
In conclusion, the fine balance may be difficult to achieve. Arguably,
there is a real philosophical incongruity. The adult system is replicated in the youth court but there is still the paternal model there in the youth system.... The two schools of thought make for difficulties (B.C. defence counsel).
During this study the caseloads were remarkably low because of the proclamation of the Youth Criminal Justice Act. Similar drops in caseloads were observed after the proclamation of the Young Offenders Act in 1984.
Each court is comprised of an intricate network of professionals who shape the way a courthouse is run. Each court has a different culture.
The study youth courts differed in a number of ways, such as the functions of the bench beyond youth matters, the delivery of legal services to accused, the degree of specialization of Crown and defence counsel and the characteristics of their clientele. In terms of social characteristics of the samples, Saskatchewan courts had many more youth of Aboriginal origin and lower percentages of the youth alleged to be out of control, substance abusers, living outside the parental home, and involved with the child protection agency. More British Columbia young persons were on probation, fewer had had been diverted in the past, and fewer had outstanding charges.
Respondents linked bail and probation conditions with both “paternalism” and “wanting to help”. To several respondents, largely defence lawyers, in many cases the conditions imposed by the youth court were excessive, burdensome and unrelated to the offence. The conditions only increased the likelihood of breaches which in turn lead to more conditions and ultimately to custody for new breaches. The use of conditions that are unrelated to the offence should be explored in further research.
In two courts, some prosecutors saw the courts as too lenient at sentencing. In one court, Crown-defence counsel relationships were less collegial than may be desirable; however, there was little indication that the relationships were adversarial in nature.
 An unknown number of B.C. youth may have received police-based diversion (now termed Extrajudicial Measures) as a result of incidents that occurred before charges were referred to Crown counsel. Police-based EJM do not show up on CPIC or correctional records, although they are available on police information systems; sometimes, but not always, this diversion experience is mentioned in the background section of the Report to Crown Counsel.
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