Youth Crime and Police Discretion

Police Contact and Decision-Making

• Police have discretion when making decisions related to youth crime
• The Youth Criminal Justice Act (YCJA) prioritizes warnings over formal sanctions for young offenders
• Most provinces allow police to divert youth from courts using extrajudicial measures

Initial Involvement in the Justice System

• A youth's involvement can start with police contact or a complaint
• Complaints can be from parents, school authorities, or victims
• Most youth crimes are reported to the police through complaints
• Police have significant discretion in deciding how to proceed with youth suspects

Police Options

• Police have several options when dealing with youth offenders:
• Issue a formal or informal warning
• Arrest and hold the youth, notifying parents or guardians
• Take the youth to the police station for questioning
• Write a report before releasing the youth
• Charge the youth with an offense
• Release the youth with conditions
• Refer the youth to a diversion program or youth justice committee
• Detain the youth for a maximum of 24 hours, starting with a bail hearing

Impact of the YCJA

• Since the YCJA 2003 youth charges decreased by 16%, a significant drop since the Young Offenders Act (YOA)
• By 2003, 55% of youth were not processed through court; this increased to 58% by 2006
• Informal processing rates have remained around 56% since 2008
• Informal measures mainly include verbal warnings with few referrals to community programs

Legal vs. Extralegal Factors

• Police discretion is influenced by legal and extralegal factors
• Legal factors are based on legal requirements and relevant criminal justice matters
• Extralegal factors aren't legitimate or relevant in justice decision-making
• Example: Holding someone in detention based on skin color is extralegal

Legal Factors Affecting Police Discretion

• Seriousness of the offence influences decisions to lay a charge
• Seriousness of the offense was the main factor for 98% of officers
• Prior police contact is a factor as is
• A youth's "display of responsibility and remorse" is an important indicator
• Prior convictions (criminal record) and breaches of probation orders are also factors
• The Criminal Code gives police broad authority in making decisions on arresting and releasing youth

Race and Discretion

• Legal factors are linked to extralegal ones, particularly prior records
• Minority youth are more likely to be arrested and have a record
• Minority race is potentially a more significant factor than having a police record
• Minority youth are disproportionately processed by police

Demeanor and Race

• A young person's attitude affects police interactions
• A suspect’s behavior and appearance influence police decisions
• Police perceive Black and Aboriginal as “difficult,” leading to adverse outcomes
• African American youth may act defiant expecting the worst from police
• Aboriginal youth in Canadian cities face similar issues
• Charge rates are significantly higher for Aboriginal youth

Disproportionate Minority Contact

• Canada's ban on race-based crime statistics prevents examining racial disparities and addressing bias
• Without data, courts and police can deflect allegations of racism

Explanations for Disproportionate Minority Contact

• Differential involvement: Minority groups are more likely to be engaged in criminal activity
• Differential treatment: Discriminatory practices exist within the justice system

Class and Marginalization

• Evidence on social class and police discretion is not recent
• Poor suspects have higher arrest rates than youth from middle-class neighbourhoods
• Arrest rates are based on police perceptions of neighborhoods
• Police attitudes toward crime-prone areas and citizen complaints are predictors of delinquency rates
• Homeless youth's survival behaviors are criminalized through repressive enforcement measures
• Municipal governments pass laws to increase police surveillance, marginalizing and criminalizing homeless youth

Age and Gender

• Gender differences in charging depend on the youth's age and the nature of the offence
• Older boys are more likely to be charged than older girls
• Younger girls are more likely to be charged than younger boys

Police Responses to Gender

• Police respond harshly to girls in minor offences
• Police less likely arrest girls for serious offences

Family and Community Influences

• Police discretion is impacted by both family and community
• When parents are concerned, only a warning is issued
• Parental involvement is an extralegal factor for 42% of Canadian police officers
• Police are more likely to use discretionary measures if parents are supportive
• Police lay charges and impose conditions if parents minimize the situation
• Communities with youth centers and safe houses give police more diversion options

Risk Management

• Some Canadian police have risk-management programs for high-risk youth
• These programs involve intensive supervision with the youth's family for up to two years
• If there is no improvement the youth can be moved to intensives programs

Diversionary Measures (Historical Context)

• The JDA (1908-1984) did not have specific provisions for diversion
• The JDA relied on police discretion to keep youth out of the justice system
• Concerns about stigmatization and criminalization led to diversion program development

Youth Offenders Act

• YOA (1984-2003) emphasized diversion and the principle of least possible interference
• Police discretion restricted to first-time offenders under the YOA

Modern Approach

• YCJA formalized concept of extrajudicial measures
• Extrajudicial measures process offenders outside the courts
• These are less formal orders by police before charges, without guilt admission

Extrajudicial Sanctions

• Extrajudicial sanctions are applied pre or past charge
• Used when referrals are insufficient
• Sanctions are applied when the young person should be held accountable

Diversionary Programs

• Alternative measures include four types of programming:
• Reconciliation/mediation involves conflict resolution, brings together offenders and victims, apologies, essays or letters
• Retributive/restitutive are punitive, involve restitution like fines, financial compensation, or community service
• Rehabilitative/educational goals help the young person understand the impact of actions on themselves, and the victim
• Restorative justice involves community conferencing, family conferencing, or healing circles to emphasize reintegration

Youth Justice Committees

• Youth Justice Committees are citizen committees administering the Act with programs for young people
• The functions of the Youth Justice committee are:
• Give advice on extrajudicial measures
• Facilitate reconciliation between offender and victims
• Ensure community support is available to youth
• Help coordinate youth services with activities of the justice system
• Advise federal and provincial governments on compliance
• Provide public information on the act and the youth justice system

Diversionary Measure Issues

• Key issues concerning diversionary measures include:
• Police accountability
• Net widening
• Consistency and accountability
• Mediation, reconciliation, and conferencing
• Administration, control, and inequality of access

Police Accountability

• Police diversionary practices involve increased use of detention and imposition of release conditions
• The YCJA reduced custody sentences but police detention rates increased
• Police detain more youth and release them with conditions under YCJA
• Police detention is influenced by the Criminal Code and YCJA with no specific guidelines

Net-Widening

• Net widening is the tendency for policies to increase the number of people in the justice system
• Formalizing diversion creates a justice system labeling youth
• Formalizing diversion may lead to more individuals entering the system

Consistency/Accountability

• The main point is decisions regarding youth referrals to extrajudicial sanctions is without transparency
• Prosecutors have broad discretion with no public oversight
• This leads to unfairness and inconsistency in how youth are treated

Mediation, Reconciliation, and Conferencing

• A key is the role of victims in mediation programs
• Successful mediation needs the victim to participate but many are hesitant to face the accused
• Victim supporters resolve the problem
• Conferencing interventions are have a potential to be misused

Administration, Control, and Access

• Diversion programs is not equally distributed
• Rural areas face issues in delivering youth justice services
• Aboriginal youth disadvantaged by lack of programs available