Police Discretion with Young Offenders

III. Environmental Factors Affecting Police Discretion

5.0 Summary

The nature of the environment in which an organization functions has a strong effect on the way in which its members do their work. Members of an organization who are in close and regular contact with the environment - "boundary personnel" - are particularly susceptible to its influence. Front-line officers and supervisors whose positions require them to exercise discretion with apprehended youth certainly fit the description of boundary personnel. However, police in management positions are also boundary personnel, because their decision-making is subjected to scrutiny and comment by the community and its representatives. Therefore, police at all levels of the organization may be expected to be sensitive to the influences of environmental variables.

In this chapter we examined several aspects of the policing environment and attempted to assess the extent to which they affect police decision-making with young persons. We began by reviewing the provisions of the most relevant federal legislation and concluded that - apart from the analysis in Chapter II of UCR data on changes over time in charge rates - we were unable to assess the impact of federal legislation on the exercise of police discretion. However, this report, in its entirety, can be seen as the first half of a possible assessment of the impact on police decision-making of the Youth Criminal Justice Act, because it depicts the exercise of police discretion just prior to that Act's coming into force. Thus, the information in this report can be used as baseline data, against which the exercise of police discretion under the new Act can be compared.

We reviewed two aspects of provincial policies and procedures: the delivery of Alternative Measures programs, and the locus of the decision to lay a charge - whether the decision is made by police or by the Crown. By comparing data on provincial charging levels from the UCR2 Survey, we inferred that the use by a province of post-charge Alternative Measures, whether exclusively or predominantly, appears to result in net-widening; that is, the laying of charges against youth who would, in other provinces, have been dealt with by pre-charge alternative measures. We found no evidence that pre-charge Alternative Measures results in net-widening; that is, no evidence that youth who are referred to pre-charge AM would, in its absence, have been dealt with by informal action. However, the UCR2 data are incomplete, and the reasoning from provincially aggregated data is necessarily indirect, so these conclusions must be somewhat tentative.

Police in two provinces - Quebec and British Columbia - told us that their decisions are subject to Crown screening: that is, police submit a recommendation to charge, and the Crown makes the final decision. However, crucially, it is police who make the decision to use informal action, as in the other provinces. It is difficult to assess the impact on police decision-making of Crown screening in Quebec, because Crown screening is only one aspect of a unique system of youth justice in that province. However, many police officers in British Columbia told us that they prefer to use informal action and pre-charge diversion (e.g. to a Youth Justice Committee; see below) wherever possible with apprehended youth, because these represent immediate and certain consequences; whereas, the response of the Crown to a recommendation to charge is unpredictable. UCR data show that the two Crown screening provinces currently have the lowest rate of charging of apprehended youth in Canada; however, this is a relatively recent phenomenon, and is therefore not necessarily due to Crown screening itself.

The availability of external resources to which apprehended youth can be diverted is seen by many police officers as crucial to their ability to avoid laying a charge. This availability varies widely. They are much more common in metropolitan jurisdictions than in suburban/exurban or, especially, rural communities and small towns. However, they are seen by officers as inadequate in all types of communities and all parts of Canada. In all provinces and territories, officers felt that they did not have the appropriate external resources for the effective handling of youths with alcohol or drug addiction, anger management issues, or mental illness (including Fetal Alcohol Syndrome/Fetal Alcohol Effect). Officers in many police agencies said that there were absolutely no programs available for young people with these problems. Lack of suitable diversion programs is associated with increased use of charging, and with increased use of detention. When there is no available agency to which police can release a youth in need of immediate supervision or intervention, then they sometimes feel constrained to hold the youth for a bail hearing (Chapter II, Section 7.5).

We looked at several characteristics of the community in which the police work. Some research, especially in the U.S.A., has found that urbanization is associated with higher crime rates and higher levels of formal action by police; whereas, there is less crime and a more neighbourly atmosphere in rural areas and small towns, and a corresponding less formal policing style. In Canada, there is no relationship between urbanization and the crime rate. Crime rates in small places are as high as those in the largest cities. However, youths commit more serious violent crime and property crime, and more gang-related crime, in metropolitan areas. Another major difference between the Canadian and American situations is that most rural areas and small towns in Canada are policed by detachments of three very large, professional, and bureaucratic police services - the RCMP, OPP, and Sûreté du Québec; whereas, in the U.S.A., small towns and rural areas are often policed by elected sheriffs or small-town police forces recruited locally. The findings from the interview data suggest a different style of policing in rural and small town areas, and also some differences between policing in urban centres and their suburban and exurban fringes. Rural and small town communities have a distinctive social climate that appears also to influence police decision-making. With a higher density of acquaintanceship, rural and small town officers feel more accountable to the community. On the other hand, detachment commanders in the RCMP and OPP are accountable to their superiors, and, ultimately, to headquarters in Ottawa or Orillia. Rural and small town officers whom we interviewed - whether in independent municipal agencies, or RCMP or OPP detachments - suggested that the communities they police want the police to be tough on youth crime but not to incarcerate their youth. Officers in rural areas and small towns appear to make more use of informal action, but less use of pre-charge diversion, than officers in metropolitan and suburban jurisdictions. Rural/small town and suburban/exurban jurisdictions are particularly likely to have no external agencies to which police can divert youth: almost half of the officers whom we interviewed in non-metropolitan communities said that they are never able to make referrals to external agencies. Officers in rural/small town communities and in suburban/exurban communities are more likely to use a summons to compel appearance, because they do not face the same problems of serving it as do officers in larger centres; and officers in rural areas and small towns are less likely to detain a youth for a JIR hearing, because the distance to the nearest youth detention facility makes access problematic, both for the police and for the youth's family. There are also some differences between metropolitan and rural/small town police in the types of conditions used in OIC Undertakings when releasing on a Promise to Appear.

The criminological literature suggests that crime and formal policing methods are more prevalent in poor neighbourhoods. One-quarter of the police services in the sample said that there was a poverty problem area in their jurisdiction: an area characterized by extreme poverty, in which youth crime was a particular problem. There were more prevalent in the Prairies and in metropolitan jurisdictions. However, there were only small differences in the use of discretion between these police services and those which did not identify such an area in their jurisdiction - perhaps because we measured the use of discretion by entire police services (or detachments), rather than in particular neighbourhoods. Police services which identified a poverty problem area are slightly more likely to charge apprehended youth, according to UCR data; they are slightly less likely to use informal action, according to the interviews. They are more likely to use an appearance notice than a summons, less likely to arrest a youth and take him or her to the police station, more likely to attach certain conditions to a release Undertaking; and more likely to detain for a JIR hearing. It is possible that some or all of these differences may be due to the prevalence of this type of problem area in metropolitan areas.

Significant numbers of transient youth were mentioned by officers in 28% of the police services, particularly in Ontario and the Atlantic provinces. UCR data indicate no difference in charge rates between these and other police services. According to the interview data, officers in police agencies dealing with transient youth are more likely to use informal action, more likely to use an appearance notice than a summons, and more likely to detain for a JIR hearing, than officers in other communities.

Officers in 32% of the police services mentioned significant numbers of tourists in their jurisdiction. No differences in the use of discretion with youth were evident between these and the other police services in the sample.

The literature on the history of police-aboriginal relations in Canada suggests that they have been characterized by conflict and mutual distrust. 42% of the agencies in the sample said that they have jurisdiction over significant populations of aboriginal peoples, living either on- or off-reserve. They are more prevalent in the Territories, British Columbia, and the Prairies. The UCR data indicate that police services which police off-reserve aboriginals have rates of charging apprehended youth which are a little higher than other police agencies. The interview data indicate that police agencies with jurisdiction over aboriginal populations are slightly more likely than other police services to use informal action, twice as likely to refer youth to a Restorative Justice program, less likely to use summonses or appearance notices, more likely to use a Promise to Appear and an OIC Undertaking, and more likely to detain for a JIR hearing because the youth is a repeat offender, is intoxicated, or for the youth's safety.

Concerning the level of youth crime in the community, 29% of police services said they had "a lot", 17% said "not very much", and the others indicated "a normal amount". Perceived high levels of youth crime are more common in the Prairies and the Territories, and in metropolitan areas. UCR data indicate that police agencies in communities with "not very much" youth crime have higher rates of charging apprehended youth than others. These are confirmed by data from the interviews, which suggest that police officers tend to use more discretion if they identified their jurisdiction as having a lot of youth crime. They are more likely to use various forms of informal action and pre-charge diversion, and they are more likely to detain for a JIR hearing and to cite "legalistic" rather than social welfare reasons for detention: a serious offence, multiple breaches (of probation orders, OIC undertakings, or bail conditions), if the youth is already before the courts, or repeat offenders.

When we asked about the types of youth crime which are characteristic of their jurisdictions, officers in most police services reported, not unexpectedly, that they deal with high levels of minor property crime and minor assaults. Three-quarters of the police agencies also perceive high levels of serious property crime by youth, especially break and enter. One-quarter identified a problem of serious violent youth crime. These were more prevalent in metropolitan areas and in the Prairie provinces. One-quarter identified a problem of youth gangs; these were also more common in metropolitan areas and the Prairies. Surprisingly, 80% of the police services in the sample perceive a serious problem of drug-related crime among youth in their jurisdictions. These are spread across all the provinces and territories, and in all types of communities, although they are slightly more prevalent in the Territories, and in metropolitan jurisdictions. 14% of the police services, all but one in metropolitan jurisdictions, and many in British Columbia, identified a problem of teenage prostitution. We found no significant relationship between the types of youth crime identified in a jurisdiction, and the exercise of discretion with young persons in that jurisdiction.

The characterizations by respondents of police-community relations in their jurisdictions are consistent with the results of previous research. About two-thirds of respondents found the community to be generally or very supportive of the police; one-quarter offered fairly neutral or mixed assessments, and 14% found the community to be only "somewhat" or "not" supportive. Police in suburban/exurban jurisdictions were most likely to find the community generally or very supportive; those in rural/small town agencies were slightly more likely to find the community generally or very supportive than those in metropolitan agencies. Police in British Columbia and the Prairies, and those which have jurisdiction over a significant aboriginal population, are less likely than other officers to find the community generally or very supportive. We found no relationship between the exercise of police discretion with youth and the perceived level of community support.

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