Crown Decision-Making Under the Youth Criminal Justice Act
Crown counsel in five youth courts, two in Saskatchewan and three courts in British Columbia, participated in this prospective study of Crown decision-making in charge approval cases (B.C. only), referrals to Extrajudicial Sanctions, bail decisions and submissions to sentence. The research was prospective in that Crown prosecutors were asked to describe the reasons for their decisions at the time they made them. Other case-related data were coded from Crown files. The study was conducted in the summer of 2003, a few months after the start-up of the Youth Criminal Justice Act.
Youth courts differed both within the same jurisdiction and compared to the other province participating in the study.
- In three courts, the judiciary either never or rarely dealt with adult criminal cases.
- Specialized Crown prosecutors (i.e., counsel whose work day was primarily devoted to youth matters) were found in two courts, with rotation of Crown counsel into the youth court found elsewhere.
- Legal aid staff lawyers represented Saskatchewan young persons and lawyers in private practice acted as defence counsel in British Columbia. In two of the five courts, therefore, defence were very familiar with youth and adult justice issues.
There were substantial differences between the two provinces in the case characteristics of the samples. Notably, the B.C. cases were more troubled – in terms of the ability of their parents to control them, substance abuse, living arrangements and involvement with the child protection agency – than were Saskatchewan cases. A much higher percentage of Saskatchewan cases were of Aboriginal origin. Saskatchewan cases were less likely to be charged with a breach of probation but more likely to have outstanding charges. The proportion of the sample with past findings of guilt was identical, at 60 percent. Another important difference is that the Saskatchewan cases were much more likely to have had diversion experience in the past than were cases from British Columbia.
Most courts were sufficiently small that most court actors knew each other and often the youth as well. Relationships among Crown counsel, defence lawyers and the bench were collegial in four courts. There was some tension between Crown and defence counsel in one court and in two courts, the bench was viewed as too “soft” by some of the Crown prosecutors.
There is a fine balance between paternalism and rehabilitation according to a number of Crown and defence counsel interviewed. Bail and probation conditions – that so often end in the young person being sentenced to custody – were associated with both paternalism and “trying to help”. It is clear however that many of the supervisory and lifestyle conditions (Kellough and Wortley, 2003) were imposed in order to control or restrain the youth in the community.
Many decisions made by Crown prosecutors are what they term “no brainers” – that is, the facts speak for themselves – for example, a charge approval case in B.C. is beyond the limitation period, the first offender shoplifter is diverted to EJS; the detained youth with only one prior conviction is released from pre-trial detention on consent of the prosecutor.
Crown counsel did not discuss the moral character of the young persons they dealt with, according to study observations. That is, unlike some police (Kellough and Wortley, 2002), few if any Crowns expressed moral outrage at the behaviour or personality of young persons. (Of course, this could have been an effect of being observed by the field worker.) In all cases, the Crowns' decisions were within legal parameters given the prior record and current offences of the accused. Many of the young persons that had troubled backgrounds were also recidivists, often with numerous findings of guilt and with prior convictions for failure to comply with community sentences.
A small sample of charge approval (Crown screening) cases was available for analysis. About six out of ten young persons were charged and sent to court. The reasons for “no further action” included procedural reasons (e.g., the limitation date for proceeding had passed), questionable credibility of complainants, and insufficient or unconvincing evidence. Three-quarters of the cases where no further action was taken did not meet the standard of substantial likelihood of conviction, and the remainder of decisions were justified by the public interest criterion.
According to the multivariate analysis of cases observed during this study, the factors that were most influential in the Crown prosecutor's decision to refer a young person to EJS were: having no prior record, having a current property offence and having fewer current and outstanding charges. Although social factors were associated with being diverted – living with parents, going to school or working, being non-Aboriginal – these relationships were not sustained when legal factors were introduced.
In both Saskatchewan and B.C., diversion policies indicated that young persons could be diverted more than once. Multiple referrals to diversion were found only in Saskatchewan.
Interviews suggest that the Crowns look carefully at the record of the young when considering re-referral to EJS: the age of the previous offences, their similarity to the current charge and the nature of the current charge (minor). In B.C., the absence of offence-specific EJS programs may affect Crown decision-making – that is, Crowns may be reluctant to refer “second offenders” to diversion because of the lack of variety in diversion programming.
The characteristics of cases referred to Extrajudicial Sanctions are as follows:
- diverted cases had an average age of 14.5 years, which was younger than the rest of the observational sample
- about three out of ten were female
- one-third were of Aboriginal origin
- three-quarters lived with their parents as opposed to being in a group or foster home, or transience
- few diverted cases were alleged to abuse alcohol or drugs
- only one out of ten were not going to school or working
- roughly three out of ten diverted persons had prior or current contact with the child protection agency, a much lower percentage than other cases in the sample
- two diverted persons had prior convictions but the remainder had no prior findings
- four out of ten diverted youth had been diverted in the past (all of these cases were in Saskatchewan)
- only one diversion case had three or more current charges
- about three-quarters of diversion cases involved property charges including indictable property charges; 10 percent had a person offence; the remainder were “victimless” such as possession of cannabis.
The Crown released police-detained young persons “on consent” in just over four out of ten cases. At the bivariate level, few demographic or social characteristics were associated with consent release. While no characteristics of the accused's prior record were related to release by the Crown, the number of current charges, having outstanding charges, and being accused of a property of victimless crime were related to release. The multivariate analysis found that having four or more current charges, having one or more outstanding charge and being an alleged substance abuser significantly reduced the likelihood that the accused would be released.
In thirty percent of the cases observed in this study, the Crown made a recommendation to the court for a deferred custody and supervision order or a custody and supervision order. According to interviews, an array of factors affected sentencing recommendations, from victim impact statements to the need for general deterrence. The contents of pre-sentence and medical-psychological reports and the opinions of probation officers were said to be especially influential. An early guilty plea and acceptance of responsibility by the accused are viewed as important. Although the multivariate analysis was hampered by the small number of cases, the factor that was most influential was whether the young person had received custody in the past. The number of prior findings of guilt and the most serious current conviction (indictable person or administration of justice offences) approached statistical significance. Age, whether the young person was going to school, living outside the parental home – while related to the submission at the bivariate level – were no longer relevant when the legal factors were introduced.
The Crown's recommendation for custody was accepted in 12 of the 14 cases and in another case the Crown recommended six months consecutive whereas the court ordered six months concurrent. Legal justification – i.e., the criteria for custody in the YCJA – was available in all cases where the Crown recommended custody. Four of the five Saskatchewan custody cases involved a violent current offence such as robbery or sexual assault; only two of the ten B.C. cases involved a violent offence. In fact, in B.C., six cases involved breach of probation and no substantive offences.
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