Crown Decision-Making Under the Youth Criminal Justice Act
There are a lot of things that we look at which would have never gone to court 10 or 15 years ago, but I don't think that's a police discretion problem. Rather it is a society-as-a-whole problem. Generally, there are not many charges that we refer to [EJS] where we're suggesting to police that they should've done it before it got to us (Saskatchewan Crown).
Many of the provisions in the new Act are similar to those in the Young Offenders Act. There are, however, some important differences. The terminology has changed, from Alternative Measures to Extrajudicial Measures and Sanctions. Extrajudicial Measures are broader than Alternative Measures, including police warnings, cautions and referrals and Crown caution programs as well as traditional diversion programs. Extrajudicial Sanctions (EJS) are one type of Extrajudicial Measure. Section 4(c) establishes the presumption that police and the Crown should respond outside the courts to young persons with no records and are alleged to have committed non-violent offences. Section 4(d) emphasizes that Extrajudicial Measures can be used more than once and that youth who have earlier been found guilty of an offence can be eligible for EJS.
“Encouraging use of extrajudicial measures for those with a prior record is very significant” because under the YOA very few referrals to Alternative Measures had a youth court record (Bala, 2002: 15).
The Saskatchewan Diversion Program Policy outlines the provincial policy for adults and young persons. The following types of incidents are ineligible for referral to Extrajudicial Sanctions: those involving the use or threatened use of a weapon; cases of violence against the person except common assault; child sexual abuse; perjury; driving while disqualified; all Criminal Code driving offences where alcohol or drugs are involved; any federal offences other than the Criminal Code ; and family violence cases. Furthermore, if the young person has a history of “significant failure” on previous diversions or
“other significant charges that call into question the appropriateness” of EJS, he or she is excluded from further consideration.
In British Columbia, Criminal Code offences are categorized into four groups, primarily by the degree of seriousness. Categories three and four are eligible for referral to EJS. Category four offences are minor and include theft, possession, false pretences/forgery etc. and mischief under $5,000. Category three offences include common assault, break and enter into a place other than a residence; theft, possession, false pretences/forgery etc. and mischief over $5,000, take automobile without consent, indecent acts other than those directed at children, and communication for the purposes of prostitution. Category two offences such as uttering threats, break and enter into a dwelling, and possession of a concealed weapon can be referred for EJS if the Regional Crown Counsel or designate has approved the agreement. The Assistant Deputy Attorney General must authorize the diversion of category one offences, which include criminal harassment and obstructing justice as well as very serious crimes against the person.
The B.C. policy explicitly states that youth with prior police warnings, cautions and/or referrals to community-based programs, Crown cautions, Extrajudicial Sanction(s) and/or findings of guilt are eligible for subsequent referral.
Defence in both Saskatchewan and B.C. commented that the EJS policies were overly restrictive. For example:
Schoolyard assaults should be able to be able to go to EJS and also robbery, which is really bullying, that could go. For whatever reason, the police are honing in on them and they're going through court. If they don't have a record or very much of a record, they could learn a lot more from a mediation type of method (Saskatchewan defence).
Another defence lawyer also argued that the entry criteria were too limited: assaults are best dealt with by mediation
“where there is an actual conversation going on” and property offences should be diverted because
“the youth can do something about the economic losses incurred by victims”.
In summary, the criteria for diversion in Saskatchewan and British Columbia are relatively broad for property offences but much less so for person offences; only common assault is eligible for referral. Young persons with prior justice system contacts, including convictions, are eligible for diversion in both provinces. It is also worth noting that breaches of probation and bail conditions are ineligible for diversion.
Compared to the bail and sentencing decisions observed, the Crown had access to, or sought out, less information and had contact with far fewer officials in diversion cases. In over half of the EJS cases the Crown had no information source other than the police report and prior record; this can be compared to 15 percent for the bail and sentencing decisions. Youth workers and social workers were much less likely to be contacted (or to contact the Crown) in EJS matters because the young person was not usually involved with these personnel. About 25 percent of Crown prosecutors were observed or mentioned speaking to defence counsel about an EJS case compared to 60 percent in other cases. Positive statements about the youth made by the Crown – primarily that he or she had no prior record – outweighed negative statements by a considerable margin.
This study was able to collect data on Crown decisions on referrals to EJS for 13 cases in Saskatchewan and 6 in the British Columbia courts. Other than one case from British Columbia and two cases from Saskatchewan, the referrals to Extrajudicial Sanctions were made after charges had been laid. The total number of young persons referred to Extrajudicial Sanctions during the time period is not available.
The social and legal characteristics of youth sent to Extrajudicial Sanctions differ from the charge approval, bail and sentencing components of the study sample: the EJS cases were significantly younger, slightly more likely to be female, more likely to be living with a parent and to be going to school or working. A lower percentage of EJS cases were Aboriginal but this is probably because the Aboriginal youth were more likely to have prior contact with the youth justice system. In terms of legal factors, EJS cases had fewer current offences (p=.004), were more likely to be charged with property offences (p=.000), and much less likely to have had prior findings of guilt (p=.000). This profile does not greatly differ from the cases diverted under the Young Offenders Act (Moyer, 1996; Canadian Centre for Justice Statistics, 1999; 2000).
It is difficult to draw many conclusions on the differences between the provinces because of the low numbers but one factor stands out. Seven of the 13 Saskatchewan EJS cases had Alternative Measures in the past and two of the seven also had prior convictions. No B.C. case had prior system contact according to the records available to the Crown.
The social circumstances of the young person were mentioned several times:
- The behaviour of a 17 year old female found intoxicated on the street and in possession of 16 grams of crystal methamphetamine was explained by
“her father states that she's been having difficulty since the death of her mother”. The Crown in this case had not wanted to divert her before the charge was laid because
“it's important that she goes to court”.
- A 16 year old girl who assaulted her mother was diverted after the Crown spoke to the mother: the accused had been sexually abused when younger and had been hospitalized for psychiatric problems. In the conversation, the Crown asked questions relating to her stability, associates and drug use. The Crown commented to the researcher,
“I don't want to criminalize children who need support, not more problems”. Crown notes showed that the Crown had involved a youth worker because of concerns about the young person.
Of the demographic characteristics, only ethnicity was mentioned as being related to diversion decisions. A Saskatchewan Crown said that Aboriginal youth may be diverted because of the availability of an Aboriginal-managed diversion program.
There is the [x program] where we've all sent cases that we should've never sent in a million years, but their people tell us that they are really trying to help the youth. So we've all sent kids to [x] who would not have been diverted if they were not Native. It is almost a reverse discrimination thing (Saskatchewan Crown).
A Crown from B.C. acknowledged that social characteristics may come into play in the consideration of diversion.
“Are they in school? Do they have parental control? Is their behaviour foolish youthful exuberance?” The exuberance comment suggests that “criminal” behaviour can be redefined as non-criminal by the Crown's assessment of the evidence and information on the background of the accused.
More than 70 percent of diverted cases involved property offences such as possession of stolen property (automobiles), theft under $5,000 and mischief. There were two cases of break and enter and a third case of possession of burglary tools. The two boys who were diverted for break and enter were 13 and 14 years old, attended school and lived with their parents. The boys allegedly broke into a non-residential building but the damage was limited. Neither had prior contact with the system. The Crown had received a letter from defence counsel explaining why the youth were good candidates for diversion. Two youth were diverted for common assault; both were female, and one was 13 years old. The other two diverted charges were possession of cannabis.
As already mentioned, none of the British Columbia EJS cases had prior Alternative Measures or convictions whereas 7 of the 13 cases in Saskatchewan had either prior diversion or convictions or both. A Crown from British Columbia linked the small number of re-referrals to the lack of variety in EJS programs:
If I had more offence-specific [EJS] programs, I would be more likely to refer them [a second time]. If I know all they're going to do is write a letter of apology and report, I'm not as likely. The Act directs me to make sure they are held accountable.
Interviews revealed that the length of time between incidents of diversion or conviction is an important factor in the decision to divert a second time. Before being considered for diversion, the Crown tries to ensure that the youth “is not someone who is a chronic offender”. Other considerations on re-diverting are whether the current offence is minor such as the amount of damage done and whether it is a different type from earlier offences.
The presence of specific programs influences diversion decisions:
- A 12 year old female first offender, although labelled as a bully by the Crown, is referred to mediation because the program is
“a much better way of dealing with a schoolyard fight”than is the court. She had been charged with both common assault and uttering threats. The police report said that the case was unsuitable for EJS.
- A mischief case was diverted to mediation because it would allow the victims to confront the youth and show him how frightened they were and
“it may do the youth some good”.
All Crown prosecutors in Saskatchewan and British Columbia were familiar with the EJS programs in their community. All legal aid staff in Saskatchewan were aware of the programs, but only some of the B.C. defence counsel could describe what is available.
Offences that have brought community attention are not as likely to be diverted. For example, a defence lawyer in B.C. said that any violence in a group setting is
“far less divertible” than other offences against the person. In addition, when
“there was concern about graffiti, [prosecutors] were sending them to court and not diverting”.
This is not always the case. In three of the communities where this research was undertaken, car theft and joyriding were in the public eye. However, automobile-related offences were diverted in Regina – probably because of the presence of HEAT (Help Eliminate Auto Theft).
-  The Crown is referring to schoolyard fights and other incidents that could be resolved by other means, but instead are referred to the police, due to zero-tolerance policies.
-  A Saskatchewan Crown said that bullying and assaults at school were salient and sensitive in the community.
-  In B.C., EJS decisions involve at least three steps. There is an initial referral for an assessment, which in this report is defined as a referral to EJS. An assessment report prepared by a youth worker then comes back to Crown. The Crown may accept or reject the recommendation. If it is accepted a contract is signed by the youth and the Crown. Formally, EJS is only considered a complete referral once the contract is signed.
-  Only cases that were approved by the Crown are included.
-  EJS cases were on average a year younger than others (14.5 versus 15.6 years old); F=8.55, p=.004.
-  It is possible that the young person had prior pre-charge diversions that were not recorded in the provincial correctional and court information systems.
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