Police Discretion with Young Offenders

III. Environmental Factors Affecting Police Discretion

1.0 The legal environment[25]

Decision-making by Canadian police in individual cases is governed by common law, statutes, and case law. In common law, Canadian police have a duty to enforce the law, but the authority not to charge in any particular case - even the most serious cases (Hornick et al., 1996). However, this original authority is conditioned by certain statutes. For example, each jurisdiction in Canada has its own statute that defines the obligations, structure and governance of police services, in some of which there is specific reference to a police officer's common law duty to enforce the law (e.g. Police Act of British Columbia Section 26(2); Police Act of Nova Scotia Section 10(b)) (Hornick et al., 1996: 32).

The main legal principles and constraints relevant to the arrest, questioning, charging, and pre-trial detention of a suspected young offender are stipulated in the Charter of Rights and Freedoms, the Criminal Code, and the Young Offenders Act (Bala, 1997).

The applicability of the Canadian Charter of Rights and Freedoms to criminal proceedings with young persons is explicitly noted by Section 3(1)(e) of the Young Offenders Act. The sections of the Charter which are most directly relevant to police work with young persons (and with adults) are:

  • 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
  • 8. Everyone has the right to be secure against unreasonable search or seizure.
  • 9. Everyone has the right not to be arbitrarily detained or imprisoned.
  • 10. Everyone has the right on arrest or detention
    1. to be informed promptly of the reason therefore;
    2. to retain and instruct counsel without delay and to be informed of that right; and
    3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

These Charter rights put considerable limits on the discretion which police may exercise with suspects or accused persons, whether youth or adults (Greenspan and Rosenberg, 2001: CH/4-CH/39).

The main sections of the Criminal Code which constrain the police use of discretion with young persons - as with adults - are the rather tortuous provisions governing arrest, detention and release in Part XVI (Criminal Code Ss. 493-529; for interpretations, see, e.g., Bala, 1997: Chap. 4; Greenspan and Rosenberg, 2001; Platt, 1991: Chap. 10). In general, the effect of these provisions, which were created by the Bail Reform Act in 1972, is to establish a presumption that young persons (or adults) should not be arrested or held in police custody or detention unless this is necessary in order to conduct a legitimate criminal investigation, to ensure attendance of an accused in court, or to protect the public - and then, for no longer than is necessary. This presumption is in sharp contrast to the presumption which existed prior to the enactment of the Bail Reform Act, that the onus as on the accused to demonstrate why s/he should not be held until trial (Hagan and Morden, 1981: 11).

The Young Offenders Act "establishes a philosophical, procedural, and dispositional framework" for handling youth crime (Bala et al., 1994a). The principles underlying the YOA include the accountability of youth, the protection of society, the recognition of special needs of youth, the use of no action or diversion from formal proceedings in appropriate cases, protection of legal rights of youth, the least interference possible by the criminal justice system and the involvement of parents (ibid.).

The parts of the YOA most pertinent to police use of discretion are Sections 3(1), 4, 56, and 69, dealing, respectively, with the principles of the legislation, Alternative Measures, the admissibility of statements from young persons, and the legal basis for community-based youth justice committees.

The Declaration of Principle [Section 3(1)] focuses on the accountability (subsections a, b, c, d, f, and h) and the rights of accused young persons (subsections e and g). Section 3(1)(a) was added in 1995:

Crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future (Bala, 1997: 35).

This amendment emphasizes the need to adopt multi-agency approaches in order to prevent youth crime and rehabilitate young persons. This section has been interpreted to include programs that reduce an individual's inclination to commit crimes (crime prevention through social development), measures to reduce the opportunity to commit crime (situational crime prevention), and programs that aim to prevent future crime either by deterrence or incapacitation (Bala, 1997; Hornick et al., 1996). Thus, the interpretation of "crime prevention" has varied (Doob & Beaulieu, 1991); however, this amendment has been interpreted to mean, among other things, that the rehabilitation of the young offender takes precedence in any dispositional decision (Bala, 1997). Evidently, this subsection allows considerable discretion in dispositional decisions, the exercise of which may partly reflect the police officer's or judge's personal values; this, in turn, may be a contributing factor to Canada's relatively high rates of youth custody (Bala, 1997).

Section 3(1)(a.1) states that:

While young persons should not in all instances be held accountable in the same manner or suffer the same consequence for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions (Bala, 1997: 36).

This provision has been applied not only to court dispositions following a finding of guilt, but also to decisions involving pre-trial detention and transfer hearings (Platt, 1991). This section also has consequences for any type of informal disposition decided upon by the police. In virtually all circumstances, informal action is predicated on the young person's accepting responsibility for his or her actions. This accountability may vary according to the type of case. For example, it appears that youths are held much more accountable in cases involving offences against the administration of justice (see Chapter II, Section 5, above). Particularly important to note is the provision for leniency where offences may be the product of immaturity instead of malice (e.g. vandalism).

Sections 3(1)(c) and (f) provide for a variety of levels of formality and intrusiveness in responding to youth crime:

3(1)(c): young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;

3(1)(f): in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families (Bala, 1997: 36).

These subsections form an integral part of the legal framework influencing police work. Subsection 3(1)(c) leans heavily towards the "welfare" model which was implicit in the Juvenile Delinquents Act. For example, some police forces have adopted a multi-agency approach to make more informed decisions that account for a youth's special needs (e.g., home situation, or disabilities such as Attention Deficit Disorder) (Hornick et al., 1996). The term "special needs" has also been interpreted as referring to the "root causes" of a young person's behaviour in support of a recommendation to the appropriate diversion program, or in deciding whether to deal with the incident formally or informally.

Subsection 3(1)(f) is premised on the notion that "official intervention has the potential to be disruptive or even harmful to a youth's development" (Bala, 1997: 49). Police officers may consider this subsection when considering whether to lay charges or use informal methods, and whether to detain or release. Subsection 3(1)(f) does not apply only to youths who are believed to have committed an offence (Platt, 1991), and has been a factor in the development of primary, secondary and tertiary prevention programs (either internal to the police department or involving community resources).

Subsection 3(1)(b) acknowledges that a rehabilitative response to youth crime is not always appropriate, and allows for the protection of society:

Society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour (Bala, 1997: 36).

This subsection has been interpreted in support of the pre-trial detention of youth suspects and for dispositions involving incarceration. However, the efficacy of incarceration is questioned as "the literature on the size of sanction suggests that this is likely to be irrelevant to whether or not a young person commits an offence…[as] changing levels of punishment will not change youth crime" (Doob et al., 1995: 81).

The recognition of police discretion concerning non-enforcement practices is explicit in Section 3(1)(d):

Where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences (Bala, 1997: 36).

This subsection has particular relevance to police and Crown prosecutors, who are responsible for the decision to charge. It provides a reaffirmation of the common law right of police officers not to charge. This is particularly important in view of the fact that each jurisdiction in Canada has its own statute that defines the obligations, structure and governance of police services, in some of which there is specific reference to a police officer's common law duty to enforce the law (e.g. Police Act of British Columbia Section 26(2); Police Act of Nova Scotia Section 10(b)), but in none of which is there an explicit provision for non-enforcement (Hornick et al., 1996: 32).

This subsection promotes either alternative measures or "no measures in circumstances where societal interests do not demand judicial proceedings" (Hornick et al., 1996: 33). This provision has also been used as the basis for provincial legislation to create diversion programs (Platt, 1991). However, substantial variation exists in terms of the amount of funding diversion programs receive and the types of cases referred (Bala, 1997). The actions of police officers may reflect this subsection, as they balance the "protection of society" against the desirability of non-intrusiveness when making decisions concerning formal, informal or no action, and whether to detain. Police understandings of the concept of the protection of society may reflect the values of the community in which they work, and can result in jurisdictional variations in charging.

Subsections 3(e) and 3(g) recognize the same rights and freedoms for young persons as for adults, and accord them additional rights. These subsections acknowledge the vulnerability of young people within the context of criminal process. For example, under the Charter of Rights and Freedoms, adults have the right to retain counsel in relation to certain criminal proceedings. The YOA guarantees this right, as well as the payment for legal services if the youth is unable to obtain or afford legal representation (Bala, 1997). These sections serve as a preface to some more specific provisions contained in the YOA, such as Section 56 that pertains to the taking of statements by police.

Section 4 allows a youth to be diverted from formal processing to alternative measures programs, provided that he or she accepts responsibility for commission of the offence and freely consents to waive the right to a trial, and that there is sufficient evidence to prosecute. The nature of these programs varies across jurisdictions in terms of application (pre-charge, post-charge), eligibility (types of offences, prior record), the degree of record-keeping, and availability (scope).

Under Section 56(2), the YOA makes unique provisions for taking oral and written statements by police above and beyond those articulated in the Charter of Rights and Freedoms. The extensive provisions include:

  • A full explanation of the youth's rights in language appropriate to the youth's age and understanding
  • A confirmation that the youth has understood his or her rights orally, in writing, or by videotape
  • A youth may consult with a parent or other adult relative in private prior to giving a statement
  • A youth may consult with a lawyer prior to giving a statement
  • If a youth waives his or her right to prior consultation with a lawyer the police must make him or her aware of the consequences of their actions
  • A youth must be warned of the possibility and consequence of transfer to adult court when the youth is over 14 and charged with an indictable or hybrid offence
  • The police must ensure the statement is voluntary and not given under duress
  • A statement is not admissible if given while the youth is under the influence of drugs or alcohol
  • A youth can have parents or an adult relative present while giving a statement
  • If the youth consulted with a parent or adult relative prior to giving the statement, he or she must be given a reasonable opportunity to be present while the youth is giving the statement unless the youth specifies otherwise
  • If a youth is re-questioned, the police must re-caution and re-advise him or her of all of these rights
  • If the admissibility of the first statement is questionable, the police must inform the youth that he or she is under no obligation to make another statement (Bala et al., 1994; Bala, 1997)

Spontaneous oral statements are considered admissible only when the person in authority does not have the opportunity to advise the youth of his or her rights (Section 56(2)) and the statement was voluntary (Section 53(3)). This may occur when a young person simply blurts out a statement at the scene.

Sections 56(2) and (3) pose various difficulties for police officers. For example, it could be argued that section 56(3) does not apply when a young person, who is not a potential suspect or when arrest is not anticipated, makes a statement (Platt, 1991). Since the statement is not anticipated by officers it is questionable whether the provisions under Section 56(2) apply. Or, the admissibility of a statement may be questioned under Section 3(1)(f) if a youth is held at the police station for an unreasonable amount of time (Platt, 1991).

The impacts of the relevant provisions of the Charter, the Criminal Code, and the Young Offenders Act, on police work with young persons have probably been immense, but are difficult to assess within the framework of the present study. We rely, in assessing the impact of various environmental conditions, on the comparative approach: we compare, or correlate, the approaches used by different police services operating under different environmental conditions, and impute differences in approach to differences in environment. In the case of federal law, this methodology cannot be applied, because all police in Canada are subject to these provisions, so there is no comparison group. Ideally, one would have comparative data on police handling of youth crime and young offenders from the period prior to the Charter, the Bail Reform Act, and the YOA, but little systematic information is available. An analysis in Chapter II of rates of young persons charged since 1977 sheds some light on changes in charging practices due to the YOA, but such data are not available for years prior to 1977. No systematic national data are available on arrests, detention, and release of young persons, for any period.

We did ask officers about changes which had taken place in their police agency's approach to youth crime, but few had begun their policing careers prior to 1984, let alone 1972; and the memories of the few long-serving officers were hazy. Therefore, other than the time series analysis of charge rates in Chapter II, we can provide no systematic analysis of the impacts of these pieces of legislation on the exercise of police discretion with youth. However, in Chapter II, we describe in some detail the current procedures used, and the rationales given, by police across Canada for the arrest, detention, and release of young persons, and for laying charges against them; and some idea of the impact of federal legislation may be inferred from these descriptions.

[25] The authors are not legal scholars and we have therefore tried to avoid venturing legal interpretations or opinions of our own. Rather, we attempt in this section to summarize the views of the authorities which we consulted; primarily Bala(1997), Bala et al.(1994a), Hornick et al. (1996), and Platt(1991).

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