Crown Decision-Making Under the Youth Criminal Justice Act

Crown Submissions to Sentence

1. The YCJA

The new legislation made major changes to the sentencing regime for young persons. Sentences must be proportional to the harm done and within the limits of proportionality, must be the most rehabilitative and reintegrative as possible. The sentence must be the least restrictive and offer the least possible interference with freedom. The long term protection of society occurs as a consequence of imposing just and proportionate sanctions. The court must take into account the social context of the young person but personal background does not enter the determination of the severity of the sanction. The court must take into consideration the time spent in pre-trial detention, past convictions, reparations made and other aggravating or mitigating circumstances.

Custody and supervision cannot be imposed unless the offence was violent, or the youth has failed to comply with previous non-custodial sentences, or the youth has a pattern of findings of guilt for crimes for which an adult would receive more than two years in jail. There is also a provision for exceptional cases with aggravating circumstances. Custody and supervision cannot be imposed if there is an appropriate alternative to custody available.

Non-custodial sentences can be employed more than once “in an attempt to move away from an ‘escalation' model of sentencing” (Doob, 2002:8). That is, a non-custodial sentence should be used for those who have previously received custody if the non-custodial sentence is proportional to the current offence.

Deterrence is not a part of the new legislation. “An apparent outbreak of crime in a community is probably irrelevant to the sentencing of ‘this youth'” (Doob, 2002: 16).

Joint submissions that are inconsistent with sections 38 and 39 of the Act must be rejected by the youth court. (This had occurred in one case in one court participating in this research and was still mentioned several months after its occurrence.)

The following sentences have been added: reprimand, intensive support and supervision, non-residential program (attendance order) and deferred custody and supervision. Deferred custody and supervision cannot be imposed unless the matter qualifies for a custodial sentence.

No provincial policies on submissions to sentence in the youth court were located.

2. The Content of the Crown Submission to Sentence

Of the 46 cases sampled where the Crown made a sentencing recommendation to the youth court, probation was the most common submission (35 percent) but other non-custodial sentences also accounted for 35 percent of recommendations (Table 5). Although strictly speaking not a sentence, two cases or 4 percent of the total resulted in a Crown recommendation for a peace bond. Despite Crowns' joking comments about their submissions being “custody, custody or custody”, recommendations for community sentences predominated in both provinces. Thirty percent of cases involved a custody or a deferred custody and supervision recommendation by the Crown.

Submission Saskatchewan B.C. Total
  Column percentages
Peace bond 0 7.7 (2) 4.3 (2)
Reprimand[30] 10 (2) 0 4.3 (2)
CSO, restitution 25 (5) 11.5 (3) 17.4 (8)
Conditional discharge 0 3.8 (1) 2.2 (1)
Probation 40 (8) 30.8 (8) 34.8 (16)
Intensive support & supervision (ISSP) 0 11.5 (3) 6.5 (3)
Deferred custody & supervision (DCSO) 5 (1) 7.7 (2) 6.5 (3)
Custody & supervision 20 (4) 26.9 (7) 23.9 (11)
Total percent 100 % 99.9 % 99.9 %
Total number of submissions 20 26 46

Notes: If the table is collapsed into custody/deferred custody and supervision compared to other sentences, the chi-square = 0.355, df=1, p=not significant.

The subsequent analysis collapses the two sentences of deferred custody and supervision order (DCSO) and custody and supervision.

3. Information Sources Used by Crown Counsel

Social Reports

Several respondents mentioned the importance of social reports in their decision-making. The Crown had a pre-sentence report (PSR) available in four out of ten submissions to sentence cases. A PSR was available in two-thirds of cases where the Crown recommended deferred custody or custody and supervision. There was no difference between the provinces in the availability of a PSR at sentencing. Medical-psychological reports were much less common; only about one out of six cases involved this type of report. In total, the Crown had one or more reports available in over one-half of the sample, and two or more reports in about three out of ten cases.

There was a strong association between the number of social reports and a custody and supervision recommendation: cases with two or more reports were twice as likely as those with only one report to result in a recommendation for custody and supervision, and five times as likely as cases with no reports. This finding is the result of the legislative injunction to have a PSR prepared (in most cases) before a custody and supervision sentence is imposed. The frequency also shows that the more severe the sentence, the more “fact finding” is done.

Verbal Interaction

Verbal exchanges between Crown prosecutors and other personnel were frequently observed or mentioned in researcher discussions with Crown prosecutors. In eight out of ten cases the Crown spoke to at least one person about the case. In about three out of ten cases, the Crown spoke to two or more persons.

As might be expected, the most frequent interaction was with defence: in more than 60 percent of the cases there was defence-Crown interaction. There was more interaction in Saskatchewan than in B.C. Many of these discussions would involve negotiations about the sentence. There was no difference in the likelihood of the Crown recommending custody and supervision, regardless of whether there was Crown-defence communication. This does not necessarily mean that negotiations were fruitless from a defence perspective. It is also possible that the discussion centred on the quantum of sentence or the content of the non-custodial order – details that are not captured in this analysis.

The second most common Crown interaction was with a probation officer, in about four of ten cases. There is a slight indication that the severity of the sentencing recommendation increased when Crowns and probation personnel discussed the case.

In summary, in almost every sentencing case (86 percent) the Crown had an information source other than the police report on the incident and prior record of the accused. In almost two-thirds of sentencing matters, the Crown had two or more sources of information.

Defence-Crown Negotiations

Interviews with Crown and defence counsel suggested that there was a large difference between Saskatchewan and B.C. Crown practices: respondents in Saskatchewan were much more likely to “negotiate” or at least discuss the sentence than were those in British Columbia. Crowns and defence were asked how frequently they negotiated with the Crown or made a joint submission to sentence: in three-quarters of Saskatchewan interviews the response was “often” compared to one-third of interviews in B.C. In this context, the joint submissions need not be formal; “we talk about it and we agree”. In one court in B.C., both Crowns and defence acknowledged that the Crowns will not negotiate on sentencing.

I don't make joint submissions. There are times where counsel and I agree on things but it is not a joint submission. I don't think it's appropriate. We may agree but we may not.

In Saskatchewan, one defence lawyer said he seldom negotiates with the Crown: “the Crown bangs his drum and I play my violin.” However, most defence lawyers in the study courts said they “almost always try to negotiate a sentence”.

According to the observations made by the researcher while in the courts involved,[31] more Saskatchewan sentencing matters involved Crown-defence exchanges but the difference was not as great as suggested by the interview comments – about half of B.C. Crown counsel communicated with defence counsel.

The reasons why there is less negotiation on sentences in British Columbia than in Saskatchewan probably include both “courthouse cultures” and the differences in organizational affiliations of defence counsel. The apparent reluctance of B.C. Crown prosecutors to discuss or negotiate sentences was said to be a long term practice. In Saskatchewan, defence are full-time legal aid staff who are regularly in youth and criminal court whereas in B.C., defence are in private practice and in most cases only intermittently in youth court. The legal aid lawyers may be more confident in approaching their Crown colleagues because of their well established, long term relationships.

4. Case Characteristics

Of the observed cases, females made up about one-quarter of sentencing cases in Saskatchewan – this was about twice as high as the percentage in British Columbia. As expected, over one-half of Saskatchewan sentencing cases had Aboriginal accused; in B.C., about one-quarter of cases were Aboriginal and one-fifth had other racial backgrounds. Involvement with the child protection agency, either currently or in the past, was far higher in Saskatchewan than in B.C., about seven out of ten cases compared to three out of ten cases. In Saskatchewan, young persons were more likely to be living with one or more parent (70 versus about 40 percent in British Columbia). In both provinces, about 40 percent of cases were “inactive”, neither working nor attending school.

Almost one-quarter of cases had an indictable offence as the most serious current offence (on which convicted). Indictable offences against the person were more likely to be found in Saskatchewan. Both provinces had similar percentages of system-generated charges[32] as the most serious offence at sentencing, at 33 percent. When we look at all charges in the sentencing sample, not only the most serious, we find that Saskatchewan cases were four times as likely as B.C. cases to involve failure to attend court or failure to comply with bail conditions.[33] The incidence of probation breaches was almost identical (about one-half of cases in both provinces involved this type of breach).

As was reported in earlier sections, previous diversion experience was much more common in Saskatchewan (almost four out of ten cases versus about one out of ten cases). The percentage of cases with prior convictions, however, was identical in the two jurisdictions, at about 70 percent. The average and median numbers of prior convictions were also the same in the two jurisdictions (3.3 was the overall mean, 2 prior findings of guilt was the overall median).

  • [30] In one case, a reprimand was recommended to the court because the Crown believed that he could not suggest “time served” under the YCJA.
  • [31] Not all Crown-defence exchanges may have been available to the researcher.
  • [32] Most often breach of bail and breach of probation.
  • [33] As noted elsewhere, this is because in some youth courts in British Columbia, young persons who violate bail conditions are brought to court on a warrant and have a bail review pursuant to section 524 of the Criminal Code. They are not usually charged with failure to attend court or failure to comply with bail conditions.

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