Police Discretion with Young Offenders

II.  A Descriptive Profile

7.0  Procedures used to compel appearance in court

7.0  Procedures used to compel appearance in court

Concern has been expressed in many quarters about the excessive reliance on incarceration of young persons in Canada, which exceeds that of many other western countries (Department of Justice Canada, n.d.). Although most of the attention is focused on sentenced custody, young persons incarcerated on remand - that is, while awaiting trial, or during trial - constitute a substantial proportion of all youth incarcerated in Canada. In fiscal 2000/01, remand admissions of young persons accounted for 39% of custodial admissions (Marinelli, 2002; not all provinces reported to the survey on which this report is based). Due to the relatively short stays of remanded youth, they accounted for a smaller, yet still substantial, proportion (22%) of young persons held in custodial facilities on an "average day" in 2000/01 (ibid.).[17]

Studies of bail hearings in youth court have found that judges sometimes stretch the interpretation of the Criminal Code grounds in ordering detention for young people, especially for youths who come from unstable or deleterious home situations. Yet, as many writers have pointed out, detention before conviction -that is, of persons presumed innocent - is an undesirable expedient whose use should be minimized, particularly in the case of young persons, who are especially vulnerable to its ill effects (Bala et al., 1994b; Task Force, 1996; Doob and Cesaroni, 2002; Varma, 2002). Unless it is absolutely necessary, pre-trial detention of young persons would appear to be contrary to the intent of the Bail Reform Act (see Law Reform Commission of Canada, 1988), the Young Offenders Act, with its emphasis on minimal interference in the freedom of the young person (Platt, 1991: 80), and the United Nations Convention on the Rights of the Child (Task Force, 1996). Also, detention before trial in criminal court has been found by several researchers to increase the probability of conviction and a custodial sentence (Griffiths and Verdun-Jones, 1994: 226).

Attempts to explain the surprisingly high rates of pre-trial detention of young persons in Canada have been directed mainly to the bail hearing itself (e.g. Gandy, 1992 (cited in Doob and Cesaroni, 2002, pp. 139-146); Varma, 2002). However, police are the "gatekeepers" of pre-trial detention, because it is they who make the initial decision to arrest, and the subsequent decision whether to release or to hold for a JIR (Judicial Interim Release) hearing. Although we have no data on this, it seems likely that a substantial proportion of youth who are being held at any given time in pre-trial detention are in police custody, i.e. have not yet had a JIR hearing. Furthermore, only those youth who are arrested and not released by police come to the attention of bail courts: thus, police constitute the initial "screening" mechanism for pre-trial detention. Also, it seems likely (although we have no data on this) that the Crown's position and arguments at the bail hearing are heavily influenced by input from the police.

According to Grosman:

When the Bail Reform Act was first introduced in Canada in 1972, police officers were concerned about the wide discretion given them under this new legislation. The police officer was given the task of deciding whether it was "in the public interest" to take a suspect into custody.Accordingly, rather than run this risk [of misinterpreting "the public interest"], police officers refused to take suspects into custody unless they were found committing or about to commit a serious crime. They refused to exercise the broad discretion given to them. (1975: 49)

The only Canadian research which we could find on police decision-making concerning the detention specifically of young persons was the study done by Carrington, Moyer and Kopelman (1986; 1988), using data collected when the Juvenile Delinquents Act was still in force. They found that rates of detention at arrest in five major cities in 1981-82 varied widely, from detention of 18% of juveniles arrested in Toronto to 63% in Edmonton. Factors affecting the probability of detention included "legal" variables (the prior record of the juvenile, the seriousness of the offence, and a history of failure to appear for court); a "socio-legal" variable ( "lack of community roots"), and "extra-legal" variables (the gender and age of the juvenile, whether s/he had previously been detained, and, in Winnipeg only, whether s/he was an aboriginal).

If the youth is not arrested, attendance at court can be compelled by an Appearance Notice (issued by police and later confirmed by a Justice of the Peace, when the charges are laid), or by a summons issued by a Justice of the Peace when the charges are laid.

If the youth is arrested, in considering whether the (continued) detention of a youth is appropriate, the Criminal Code requires the arresting officer (S. 497) or the Officer In Charge of the police custody facility (S. 498) to assess whether detention is required to:

  1. establish the identity of the person,
  2. secure or preserve evidence of or relating to the offence,
  3. prevent the continuation or repetition of the offence or the commission of another offence,

or because the officer has reason to believe

(b) that, if the person is released from custody, the person will fail to attend court.

In making this assessment, the police typically consider the personal history of the accused (any prior breaches, education, family, and employment), the circumstances of the specific charge, and the victim's reaction (Bala et al., 1994a). One Canadian study found that an "uncooperative" accused is more likely to be held in custody by the police (Hagan & Morden, 1981). Accused persons who are not released from detention by the police are supposed to be brought before the court for a judicial interim release ("bail") hearing within 24 hours, or "as soon as possible" thereafter. According to Bala, "in practice, some youths may be detained for a few days before being brought before the court" (1997: 137).

As an alternative to continued detention, there are three different methods police can use to release an accused youth from custody. These methods, and the criteria for their use, are the same for young offenders as for adults. These various release methods exhibit substantial variability in the degree of intrusiveness (what Klinger (1996) calls "the amount of law applied"). First, police may release the youth on an Appearance Notice, which the youth should sign, or with the intention of having a summons issued. Second, they may release the youth by way of a Promise to Appear, which is signed by the accused. Third, the police can release on a Recognizance which requires the suspect to formally acknowledge a debt to the Crown for an amount up to $500 which may or may not require a deposit. Both the Promise to Appear and the Recognizance can be accompanied by an Undertaking, in which the youth agrees to conditions on the release such as a curfew, limitations on movement, or parental supervision.

We questioned police in detail concerning the options available to them for compelling the attendance at court of young persons whom they had charged, and the circumstances and considerations which influenced their decision-making.

7.1  The summons and appearance notice

The summons and appearance notice are the only methods of compelling appearance that do not require arresting the young person and bringing him or her back to the police station. Therefore, their use would appear to be particularly appropriate with young persons, consistent with the YOA principle of "least possible interference with freedom." However, according to our interviewees, they are rarely used in Canada with young offenders. Figure II.18 summarizes the answers we received when we asked officers about their use of summonses with young persons (percentages add to more than 100% because multiple answers were permitted).

Almost two-thirds (62%) of the police agencies interviewed never use summonses with young persons, or do so rarely. 41% said that they used summonses for minor offences. Only 4% use them with most offences.

When we asked why the summons was not used, or rarely used, with young persons, many officers offered no reason except that it was not the procedure used in their police service.

Figure II.18 Use of the summons with young persons

Figure II.18 - Use of the summons with young persons

Description

When reasons were given for arresting rather than using summonses with young persons, the main one cited was the need to take him or her to the police station in order to conduct a proper investigation. This would typically involve establishing identity, taking a statement, possibly fingerprinting, possibly notifying the parents, and completion of one or more forms, all of which can be done much more satisfactorily in a police station than in the street or police car.

Another reason given for not using summonses was the difficulty of tracking the youth in order to serve the summons (which must be done by an officer in person, not by mail). This reason was cited more often in large metropolitan police services, which deal with significant numbers of transient youth. Over half (53%) of the police agencies who said that they never use a summons with young persons, came from metropolitan areas.

Although the majority of respondents indicated that they do not use summonses with young persons, OPP officers are much more likely to summons a young person (64%) than the other types of police forces (38%). OPP officers indicated that, for most of the crimes committed by young persons, it is the most appropriate method of compelling appearance. They do not feel they need to bring a young person to the police station for minor offences (e.g. mischief, shoplifting, offences on school property).

Summonses appear to be used with young offenders much more frequently in the Atlantic provinces and the Territories than elsewhere in Canada: only 33% of police services in the Territories, and 45% of those in the Atlantic region, said they rarely or never used summonses with young persons, compared with 83% in Ontario, 88% in the Prairies, and 92% in British Columbia [18].

Responses to our questions about the use of appearance notices with youth fell into three groups. Used when none of the other options apply indicates agencies that use an appearance notice if the youth-related incident is not appropriately dealt with by detention, a Promise to Appear (PTA), an undertaking, or a summons. Police agencies whose answers fell into this category tended not to use summonses for young persons, and therefore would use an appearance notice for minor offences when there is no need to arrest and no concern about attendance in court. In provinces that have post-charge alternative measures, an appearance notice is commonly used if the officer feels the youth will probably be diverted from youth court. For very minor offences indicates those agencies that said they will use an appearance notice only in circumstances where they have defined the incident as very minor. The officer's classification of the offence as "very minor" may also be influenced by the youth's prior contacts with the police (interactions that did not result in formal action being taken). Finally, some police services indicated that they rarely use appearance notices with youth. Figure II.19 shows the distribution of answers (percentages add to more than 100% since multiple answers were permitted).

Figure II.19 Use of the Appearance Notice with young persons

Figure II.19 - Use of the Appearance Notice with young persons

Description

It is noteworthy that none of the police services which we interviewed said that they use appearance notices "frequently," or "with many offences." Their answers universally exhibit a lack of enthusiasm for the appearance notice, as for the summons, as a means of compelling attendance of young persons, and vary only in the degree of disinterest.

As with the summons, the main reason given for the non-use of appearance notices is the need to arrest and bring the youth to the police station in order to investigate the incident. Another reason cited was that often a youth is apprehended in the company of peers, and it is necessary to arrest in order to separate him or her from the others in order to elicit some degree of co-operation, since youth are generally reluctant to be seen co-operating with police.

A third reason for the preference for making the arrest was not stated explicitly, but seems to us to be implicit in officers' views that taking the youth to the police station represents a form of informal action (i.e. an alternative to diversion or charging). It seems that, in some circumstances, arresting the youth and taking him or her to the police station, then releasing without charge, is seen by some officers as more of a "consequence" than releasing at the scene but less than referring to alternative measures or laying a charge. It is, in effect, a form of "formal warning", which may impress the youth with the unacceptability of his or her conduct, without the necessity of subjecting him or her to a formal charge. (Of course, the arrest as informal action is only an option when legal grounds for arrest exist.)

Finally, officers in 31% of the police services said that they use appearance notices in "very minor" cases. To some extent, this limitation is mandated by the Criminal Code, which says (S. 496) that the Appearance Notice (unlike the summons) may be used only with summary, hybrid, and minor indictable offences (the "absolute jurisdiction" indictable offences in S. 553, such as theft, fraud, and possess stolen goods). However, offences for which the Criminal Code allows the use of the appearance notice comprise the vast majority of youth crime: theft under, most frauds, mischief, common assault, bail violations, fail to appear, and drug possession are hybrid offences, and fail to comply with a disposition under the YOA is a summary offence. Thus, the only offences committed with any substantial frequency by young persons for which the use of the appearance notice is precluded by S. 496 are break and enter (dwelling) and robbery.

Arresting the youth and taking him or her to the police station do not preclude the use of a summons or appearance notice, since they can also be used when releasing from the station; but officers usually prefer other methods of compelling appearance on release: these are discussed below.

There are some variations among police forces in their use of the appearance notice.

Police agencies in rural areas and small towns are especially unlikely to use appearance notices. They were less likely to say they used appearance notices with youth "for minor offences" (16% said this, compared with 32% of suburban/exurban, and 32% of metropolitan police services). They were also less likely to say that they use an appearance notice when no other options apply (32%, versus 51% of suburban and metropolitan services). They were more likely to say they "rarely used" appearance notices with youth (43%, compared with 22% of suburban and metropolitan police services).

Consistent with these differences by type of community in the use of appearance notices, provincial police detachments (including the OPP and RCMP), which tend to police rural and small town jurisdictions, were much more likely to say that they use appearance notices rarely with youth (50%, versus 20% of independent municipal services); and much less likely to say that they use appearance notices even for minor offences (23%, versus 40% of independent municipal services).

7.2  Release on a Promise to Appear (PTA)

Many police agencies rely on the Promise to Appear to compel the attendance at court of young persons who have been arrested and taken to the police station. Explanations which were offered for the use of the PTA are summarized in Figure II.20 (percentages add to more than 100% because multiple answers were given).

Figure II.20 Reasons for release on a Promise to Appear

Figure II.20 - Reasons for release on a Promise to Appear

Description

A majority (60%) of police agencies said that they release on a PTA whenever they have taken a youth into custody temporarily, but continued detention is unnecessary. Officers in 45% of the police agencies gave a similar explanation: that the PTA was the usual method of release from the police station. This confirms the finding reported above, that summonses and appearance notices are rarely used as a method of release at the police station. A major reason for this is suggested by the 60% of officers who said that the PTA is used in conjunction with an Officer In Charge (OIC) Undertaking (discussed below), which imposes conditions on the accused, and which cannot be used with release on a summons or appearance notice.

Small numbers of interviewees (15%) indicated that the PTA is appropriate for "minor offences" - the implication presumably being that detention for a JIR hearing was more appropriate for major offences.

Small numbers (14%) identified release on a PTA, especially with an Undertaking, as a "higher consequence" than release on a summons or appearance notice. This is reminiscent of the view (discussed above) that arresting the youth, taking him or her to the station, then releasing without charge is, in itself, a form of "consequence": a useful element of the police officer's repertoire of dispositions. In effect, the arrest/release process becomes a form of sanction, or consequence, in its own right, independent of any subsequent action by the court.

Provincial police detachments (including RCMP and OPP) were more likely to say that they use a PTA to release without detention (73%) than independent municipal agencies (54%). This occurs more frequently with detachments and agencies located in the Prairies (82%) and Ontario (83%), compared to the Atlantic provinces (27%), where the summons is used more often to compel appearance (see above). Finally, officers with 5 years or less experience were more likely to say that they release young persons on a PTA (71%) than officers with 6 years or more experience (44%).

Agencies located in metropolitan areas (23%) were the most likely to say that they use a PTA as a "higher consequence", compared with rural and small town agencies (9%) and those located in suburban/exurban jurisdictions (11%).

7.3  Release on an Officer In Charge undertaking

Sixty percent of the agencies in our sample said that they use a Promise to Appear with an OIC undertaking. This led us to explore the types of conditions that are attached and how frequently they are used. Interviewees' responses are summarized in Figure II.21 (percentages add to more than 100% because multiple answers were permitted).

The no go condition refers to a youth being restricted from going to a certain place or area. This could include places such as donut shops, schools, neighbourhoods, or shopping malls. About one-quarter (26%) of those agencies that use undertakings told us they commonly attach a "no go" clause. Further, provincial police detachments (including the RCMP and OPP) are twice as likely (40%) to attach a "no go" clause as independent municipal agencies (18%). Not surprisingly, only 9% of the police agencies in the Atlantic provinces said that they include a "no go" clause. This is consistent with the previous finding that the police officers in the Atlantic provinces are less likely to use a PTA with an undertaking than police in other regions in Canada.

Figure II.21 Conditions of OIC Undertakings

Figure II.21 Conditions of OIC Undertakings

Description

The condition of no association refers to the youth being restricted from coming in contact with certain specified individuals. For example, this clause may be added in cases of assault (to stay away from the victim), gang-related crime (to stay away from fellow gang members), or crimes committed in groups (to separate the co-accused). Just over one-third (36%) of police agencies indicated they commonly attach a "no association" clause to the undertaking. Again, provincial police detachments (including the RCMP and OPP) are more likely (45%) to attach this condition than independent municipal agencies (32%). This clause is also used more often in the Prairies (47%) and Ontario (53%) than in the other regions in Canada.

Undertakings commonly include the clause, keep the peace and be of good behaviour. Our data suggest the precise meaning is somewhat contentious. Many officers indicated that it is a very difficult clause to enforce as it is open to almost any interpretation. About one-quarter (24%) of police agencies told us they commonly attach this condition. However, we suspect it occurs much more frequently. We speculate that it was not mentioned on a more consistent basis, due to the degree of importance officers assign to the various conditions. Since this clause can have a myriad of interpretations, in the cases where officers did reply affirmatively, it was as an afterthought. They frequently told us that this clause could mean anything. For example, if a young person did not go to school or obey their parents, they could be in breach of this clause. Most officers wanted the conditions in the undertaking to be much more offender- and offence-specific. 40% of the provincial police detachments interviewed indicated that they commonly attached this condition, compared to only 14% of independent municipal agencies. Further, agencies located in rural and small town jurisdictions were much more likely to attach this condition (32%) than other community types (18%). This may be a reflection of the higher social cohesion characteristic of rural areas and small towns, in which the police are more likely to know the young person, their friends, and their families. Finally, as expected the agencies in the Atlantic provinces were the least likely (9%) to attach this condition to an undertaking.

Officers also attach a condition stipulating no alcohol or drugs to their undertakings with youth. This condition is meant to control a young person's substance abuse. It is commonly attached when the young person committed the crime under the influence of either alcohol or drugs. 19% of the agencies indicated that they commonly attach this condition to youth-related undertakings. Provincial police detachments (including the RCMP and OPP) are twice as likely (28%) to attach "no alcohol or drugs" to the undertaking than independent municipal agencies (14%). This may be a reflection of the types of youth crime and social issues in the jurisdictions that the RCMP and OPP police. This condition is attached more often in the Prairies (35%), Ontario (30%), and the Territories (22%) than in other regions of the country.

The condition referred to as no weapons restricts youth to not being in possession of a weapon. Only 2% of the agencies in our sample indicated they commonly attach this condition. Many officers indicated this condition is much more frequently used with adults than with youths.

The condition of curfew refers to a time limit set for the young person to be at home. The curfew is usually set with specific starting and stopping times, such as dawn to dusk or 7:00 pm to 7:00 am. We were repeatedly informed by officers that they do not have the legal authority to attach a curfew to an OIC undertaking - that it can only be ordered by a Justice of the Peace. Despite many of our respondents across the country indicating they were not legally empowered to attach a curfew, 31% commonly did so. Some interviewees informed us that the judges commonly uphold the curfew conditions which they have included in Undertakings [19]. Others said they need to "control" the young person to ensure that the offence is not repeated prior to the first court appearance. As with the other conditions, provincial police detachments were more likely (38%) to attach the condition of a curfew than independent municipal agencies (28%), although the difference is not large. There appears to be a distinct relationship between the imposition of a curfew and the type of community. Of the metropolitan police agencies, 40% indicated that they attached curfews, compared to 32% of suburban/exurban and 25% of rural/small town agencies. This suggests that it is not necessarily the type of police force that determines the extent of use of the curfew, but the type of jurisdiction which is being policed. The condition of curfew is more commonly attached in the Prairies (47%), Ontario (43%), and the Territories (33%).

Another condition that interviewees mentioned is the requirement to attend school. In some cases, the youth is committing crimes during school hours, and, upon consultation with the school, officers have discovered the youth is frequently absent. In those circumstances, officers indicated they will attach a condition of attending school. However, in most cases these are not patrol officers but School Liaison officers that also conduct investigations within their schools.

The final category of conditions unspecified includes those police agencies that indicated they did use undertakings with conditions for youth-related incidents, but did not clearly specify which conditions they most commonly use. 56% of police forces in our sample fell into this category. Some of these police forces were coded under this category as well as another category, because the interviewee made it clear that they commonly attached unspecified conditions in addition to the specified one(s).

Many officers seemed to attach considerable significance to the conditions contained in an undertaking. They see these conditions as relatively precise, immediate, enforceable constraints on the young person's future behaviour, and immediate, concrete consequences (sanctions) for the youth's criminal act. These are contrasted with what they see as the remote, delayed, unpredictable, and perhaps inappropriate constraints and sanctions which may (or may not) be imposed eventually by the Youth Court and correctional system.

7.4  Release on a Recognizance

The Criminal Code provides that the arresting officer or Officer In Charge may release a young person (or adult) on the person's "entering into a recognizancein an amount not exceeding $500" (S. 498). Unless the person lives more than 200 km. from the place of custody, no deposit can be required. Like the Promise to Appear, the Recognizance may be accompanied by an Undertaking specifying conditions.

When we asked interviewees about the use of the recognizance with young persons, every one said that they are not used with young persons. No reasons were offered - that is simply "how things are done here" - but we would speculate that the use of the financial condition is seen as inappropriate with young persons. This mirrors the apparent views of Youth Court judges, who rarely assess a fine as a disposition. Perhaps also, there would be a legal impediment to enforcing a recognizance, since it is a debt instrument, with a person under 16 years of age [20].

7.5  Summary: Methods of compelling appearance without detaining

Before embarking on a discussion of the use of detention, we will summarize our findings concerning the various other methods used by police to compel attendance at court. These include: the summons and appearance notice, which can be used either instead of arrest, or as a method of release after arrest; and release on a Promise to Appear (PTA), with or without an Undertaking involving conditions. Theoretically, police can also release a young person on a Recognizance, but this is apparently never done.

Although the use of the summons or appearance notice without arrest would seem to be particularly desirable with young offenders, because of the non-intrusiveness of these measures, they are in fact rarely used. There are several reasons. The main reason appears to be that when an officer contemplates laying a charge or referring to pre-charge Alternative Measures, s/he needs to obtain enough evidence to support a prosecution (whether or not a prosecution actually takes place). This would typically involve establishing identity, taking a statement, possibly fingerprinting, possibly notifying the parents, and completion of one or more forms, all of which can be done much more satisfactorily in a police station than in the street or police car. Another reason is that arresting the youth and taking him or her to the police station prior to laying a charge are seen as ways of impressing the seriousness of the situation upon the youth, who might not take a summons or appearance notice as seriously. Related to this is the necessity, in some circumstances, of establishing control of the situation, and of separating the youth from his or her peers, in order to elicit cooperation. A final reason is the difficulty, in some circumstances and jurisdictions, of serving a summons.

Following arrest and temporary custody, most officers prefer the Promise to Appear to the summons or appearance notice as a method of release. The main reason is that the PTA can be accompanied by an Undertaking which specifies conditions of release. Many officers seem to attach considerable significance to the conditions contained in an undertaking. They see these conditions as relatively precise, immediate, enforceable constraints on the young person's future behaviour, and immediate, concrete consequences (sanctions) for the youth's criminal act. These are contrasted with what are seen as the remote, delayed, unpredictable, and perhaps inappropriate constraints and sanctions which may (or may not) be imposed eventually by the Youth Court and correctional system.

7.6  Detention for a judicial interim release hearing

The final, and most intrusive, option for compelling appearance is detention for a Judicial Interim Release (JIR) hearing. The explanations given by police for the use of continued detention are summarized in Figure II.22 (percentages add to more than 100% since multiple answers were permitted).

A large majority of police agencies (82%) indicated that they follow the law when determining whether a young person will be detained or released. This category captured all of those interviewees who answered by saying that they do not detain a young person unless the law gives them the authority to do so. They tended to characterize the decision to detain or release as relatively non-discretionary, determined by the provisions of the Criminal Code. However, further discussion of the issue often elicited additional considerations, and the decision began to appear more complex.

Figure II.22 Reasons for detention for a JIR hearing

Figure II.22 - Reasons for detention for a JIR hearing

Description

The 4 Ps and R.I.C.E. is an acronym commonly referred to by police officers in Ontario. The acronym itself is not listed in the Criminal Code; however, the content originates from Criminal Code Sections 497 (1.1) and 498 (1.1). The "4 Ps" are used to teach new recruits when they cannot release an adult or young offender. They represent: (1) Protection of the public interest, (2) Protection of the accused, [21] (3) Protection of property, and (4) Prevent a breach of the peace. The acronym "R.I.C.E." represents:

R =
Repetition (of the offence)
I =
Identity (of the accused)
C =
Court (likelihood of appearing for)
E =
Evidence (protection of).

If there is no concern about the accused repeating the offence, the identity of the accused, whether s/he will appear in court, or destroy the evidence, then the police officer must release the young person. 11% of police agencies indicated the "4Ps and R.I.C.E." as one of the reasons they use to detain young persons. These agencies were predominantly independent municipal services, which suggests that the training programs for the RCMP and the OPP do not use these acronyms.

Almost half of the police agencies (46%) consider detaining a young person who is a repeat offender. Some officers indicated this consideration would come into play if the youth had committed the same crime previously. However, the clear majority suggested that any lengthy prior record would make them more likely to detain. Although this was not mentioned explicitly, the implicit rationale here seems to be that there is an indication of a propensity to re-offend if released. However, some officers took the rather different view that it was a necessary measure, since the young person obviously did not understand the seriousness of his or her actions and perhaps spending a night in jail might impress this upon them. As in the discussion of other measures, we see here the use of detention by police as a practical, immediate sanction or "consequence" for the youth's illegal behaviour, or in response to the youth's apparent lack of respect for the law. RCMP officers were more likely to suggest that they will detain a repeat young offender (65%) than other types of police services (42%). Police agencies in metropolitan areas were much more likely to cite repeat offending as a reason for detention (63%) than suburban/exurban (37%) and rural/small town jurisdictions (41%).

A special type of repeat offender is one who has a record of multiple breaches which can include breaches of probation, undertakings, or bail conditions. 36% of the police agencies indicated that they considered this as a reason to detain a young person. Similar rationales were provided to those given for detaining a repeat offender. Provincial police detachments (including the RCMP and OPP) are slightly more likely to detain a young person for multiple breaches (45%) than independent municipal agencies (32%). As with detention of repeat offenders, police agencies in metropolitan areas are more likely to detain for multiple breaches (50%) than those in other types of communities (30%).

The category if they are before the courts refers to youths who are detained because they still have charges before the courts. In other words, they were released on a prior offence and have committed another offence before their first court appearance, or during their trial, for the previous offence. 26% of the police agencies indicated they would detain a young person for this reason. Police agencies in metropolitan and suburban/exurban jurisdictions (35%) are much more likely than those agencies policing rural and small town jurisdictions (18%) to indicate that they detain for this reason. Police agencies working in Ontario are much more likely (43%) than those in any of the other regions in Canada to detain because a youth is before the courts.

Some police agencies indicated that they would detain a young person in order to get bail conditions at the JIR hearing: that is, in expectation that the youth will be released on conditions by the judge or JP. Agencies which detain for this reason tend not to use OIC undertakings. 28% of the police agencies in our sample indicated getting "bail conditions" as one of the reasons they detain a youth for a JIR hearing. Some other officers indicated that the conditions assigned by a judge or JP are much more "binding" than those given under an OIC undertaking. They also added that a judge or JP can assign an enforceable curfew for high-risk offenders. It should be noted that organizations with a high-risk offender monitoring program (e.g. SHOP, SHOCAP) rely on bail conditions and probation conditions to monitor their clients. Almost all of these programs occur in independent municipal police forces, which is probably why independent municipal agencies are more likely to detain to get bail conditions (38%) than other types of police agencies (20%). Similarly, agencies in metropolitan areas are much more likely (50%) than suburban/exurban (37%) and rural/small town jurisdictions (11%) to detain for bail conditions.

Almost one-quarter of the police agencies indicated they would detain a young person who was intoxicated or under the influence of drugs (under the influence). In several instances, officers indicated they did not have any other place to put the young person, as the parents could not take care and control of the young person, since they were themselves intoxicated, and/or that there were no detoxification facilities for youth in their jurisdiction. This scenario was cited by police in all types of community and in virtually all provinces and territories. In many cases, police expressed great concern about releasing a young person who was intoxicated, on grounds of the youth's own safety. In jurisdictions that have high rates of adolescent drug and alcohol consumption, officers also expressed concern about their own legal liability in releasing an intoxicated young person without parental supervision. They suggested that they put the young person in danger of victimization as well as an increased likelihood of committing an offence. Agencies in metropolitan areas are much more likely to detain a young person because of intoxication (37%) than in other types of communities (19%). Further, 55% of agencies in the Atlantic provinces indicated they detain young persons for this reason. This was considerably higher than the other regions in Canada which ranged from 0% to 30%.

A rationale for detaining a young person which is closely related to intoxication is the best interests of the youth (no responsible adult). Officers in 20% of police agencies gave this as a reason for detention. Other circumstances (than intoxication) that would fall under this category would be an officer unable to find a responsible adult, or to make arrangements with social services, to take care and control of a young person. In some provinces and territories, once a young person reaches the age of 14, it can be difficult for the police to have social services place the young person in a foster home if s/he has never been previously placed. Several officers indicated that social services will not take a young person into custody who is over the age of 14. This was mentioned more often by police in metropolitan areas (40%) than in other types of communities (11%). As with intoxication, police agencies in the Atlantic provinces are much more likely (55%) to detain young persons for their own good (other areas range from 0% to 27%). This is clearly, as with the previous category, a social welfare issue, and raises the question of the adequacy of social services coverage in many jurisdictions. 6% of police agencies explicitly cited the lack of social services support (e.g. foster care) as a reason for detaining young persons. Similarly, 4% of police agencies indicated they had to detain a young person in order to get them admitted to a program (e.g. substance abuse program). One officer stated that, unless he detains them first to "dry out," he is unable to refer youths to any of the substance abuse programs operating in the big city in which he works, because youths had to be sober and substance-free for at least 72 hours to be accepted - a condition which is next to impossible for youths who are addicted to heroin and living on the streets.

Several other kinds of reasons for detention of youth were given less frequently. 3% of police agencies indicated they detained a young person to remove them from prostitution. These agencies were all in metropolitan areas. Another 3% indicated they detained young persons due to their attitude. Finally, 6% of agencies indicated they would detain a young person if the incident was gang-related. These agencies are almost entirely in big cities in the Prairies and Ontario.

The reasons given by police officers for detaining youth fall into three broad categories. The first includes reasons related to law enforcement, narrowly defined, and are exemplified by "the 4 P's and RICE". The second group of reasons could be summarized as "detention for the good of the youth". These include detaining youth who are intoxicated, who do not have a safe or secure home to be released to, and whom social services will not or cannot accommodate, or who are prostitutes. In these circumstances, police find themselves acting, not as law enforcement officials, but as staff of the "only 24-hour emergency service in town". [22]

The third type of rationale treats detention as another kind of police disposition - that is, as another in the repertoire of measures which police can take in order to administer a sanction or "meaningful consequence" for a youth's illegal behaviour. This view seems to underlie some officers' statements that they will detain a repeat offender or a youth with multiple breaches, or a youth with a "bad attitude", or a youth in a gang-related incident. A variant of this is the use of detention and the JIR hearing to get judicial bail conditions, in order to impose immediate control on the young person, and, in some cases, to facilitate the work of monitoring programs for high-risk youth, such as SHOP and SHOCAP.

7.7  Offences that almost always result in arrest and detention

We attempted to simplify the complexity of the reasoning behind the detention/release decision by asking if there were any offences which would almost always result in detaining the young person for a judicial interim release hearing. We met considerable resistance to this question, as many of our interviewees insisted that these decisions are case-specific: that is, they are made on the basis of a constellation of factors which are specific to each case. Figure II.23 summarizes the responses we received.

Over half (60%) of the police agencies in our sample indicated that they almost always arrest and detain young persons for serious offences. However, it was extremely difficult to elicit a succinct definition of "serious offence". The example that officers gave most often involved assault causing bodily harm and most offences that involve a weapon. Police agencies in metropolitan areas are more likely (73%) to say that they almost always arrest and detain for serious offences than those in suburban/exurban (63%) and rural/small town areas (52%). In the Territories, the police are the least likely (22%) to say that they almost always arrest and detain for serious offences. We speculate that this is due to the lack of custodial facilities within reasonable travel distance, as a significant proportion of the detachments in the Territories are remote and isolated.

Figure II.23 Offences for which police almost always arrest and detain

Figure II.23 - Offences for which police almost always arrest and detain

Description

Almost one-third (34%) of the agencies indicated they would almost always arrest and detain repeat offenders. Most officers indicated that these types of offenders are what they consider their "regular clientele". In most circumstances, these repeat offenders are detained because of both the nature of the offence and their prior record.

Over one-third (36%) of the police agencies indicated that they almost always arrest and detain due to departmental policy, as set out in departmental guidelines. For example, the OPP lists fifteen Criminal Code offences as "benchmark" crimes, for which the accused is always arrested and detained (e.g. murder). 93% of the OPP detachments which we interviewed indicated that they "almost always" arrest and detain young persons only in cases of benchmark crimes.

A reason provided by 19% of our respondents for "almost always" arresting and detaining was to get release conditions. As noted above, the majority of these respondents do not routinely use OIC undertakings. The remainder would detain for release conditions if the youth had previously breached an OIC undertaking. Independent municipal police agencies are more likely (26%) to say that they almost always arrest and detain to get conditions than other types of police agencies (12%).

Finally, a small proportion (5%) of police agencies indicated that they would almost always arrest and detain young persons for alcohol- or drug-related offences.


  • [17] Doob and Cesaroni (2002: 142-143) report that in fiscal 1998/99, remand admissions accounted for 60% of youth custody admissions, and 18% of average daily counts of youths in custody in Canada (excluding some non-reporting provinces).
  • [18] There were too few responses from police services in Quebec to analyze.
  • [19] Cf. "bail" conditions in Section 7.6 below.
  • [20] For the enforcement of debts against children, see Bala and Clarke (1981: 223-225).
  • [21] This is what we were told, and the example was given of a notorious(alleged) criminal such as Paul Bernardo, who would not be safe from public vengeance if he were released; however, Sections 497 and 498 do not mention protection of the accused; only protection of any victim or witnesses.
  • [22] Similar considerations arise at judicial interim release hearings; research on this is reviewed in Doob and Cesaroni, 2002, pp. 139-146.

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