Police Discretion with Young Offenders

IV.  Organizational Factors Affecting Police Discretion

5.0  Authority and responsiblility for the decision to charge

It seems self-evident that variations in the locus of the responsibility and authority to lay charges against a young person will have an effect on the outcome of such decisions. Since Dennis Conly's (1978) report, describing the situation in 1976, was the last national study of this topic, we begin by reviewing his findings.

One of the more striking aspects of juvenile justice in Canada under the Juvenile Delinquents Act is the remarkable variety of arrangements for deciding whether a juvenile should be charged.[73] These variations arise from two distinctions: (1) whether the police, Crown Prosecutor, or neither, made the final decision; and (2) whether the front-line officer, Youth officer, supervisor, or a committee, made the final decision (to charge, or recommend for charging) within the police force itself. In the provinces of Quebec, Manitoba, and British Columbia, the final decision to charge a youth was "not procedurally a police function" (Conly, 1978: 47). In these provinces, the police investigated the incident, referred the case to the Crown prosecutor with their recommendations, and then laid the charge(s) if the Crown so decided. [74] Apart from this provincial variation, in the ultimate authority to make the decision about laying charges, each police force in the country determined who would have the authority and responsibility within the force to decide whether to charge (or make a recommendation to an external authority to charge) or to deal informally with the young offender. Conly included both the internal and the external (to police) allocation of responsibility and authority within one classification scheme.

According to Conly, the allocation of discretion varied from front-line and supervisory responsibility to a mixed model, to external responsibility by non-police personnel. An example of front-line responsibility in its purest form was the Toronto Police Force, where Youth Officers completed the entire investigation from beginning to end. Some other departments employed a partial specialization model, in which Youth Officers might be called in to conduct a follow-up investigation and decision if the front-line officer felt more information was needed than could be collected using regular investigatory techniques. In some jurisdictions, the final police decision lay with the supervisor, "based on the reports of field officers" (Conly, 1978: 47).[75] In a slightly different model, the supervisor based his or her decision on reports from the investigating officer and either confirmed the recommendation or amended it, in consultation with the field officer.[76] However, as with the majority of factors that influence police charging, supervisory responsibility can be viewed on a continuum. For example, in London, Ontario, the decisions of regular investigating officers were rarely changed by supervisors.

Alternatively, a mixed responsibility model (e.g. Quebec) involved the distribution of authority being case-specific. In other words, in cases in which police did not wish to lay charges, the decision rested with the front-line officer or supervisor. In those cases that involved a strong probability of a charge, the case was referred outside the police department.

A final model involved final authority and responsibility which were external to the police. In these circumstances, the police responsibilities included the investigation of the case and a recommendation to non-police personnel. For example, in St. John's, members of the provincial Justice Department made the final dispositional decision, and in British Columbia the reports were "generally sent first to the Crown for a substantiation of the sufficiency of the evidence and then forwarded to the Probation Office of the Family Court where a final decision in respect to charging the juvenile is made" (Conly, 1978: 47).

In addressing this issue, we felt that clarity could better be achieved if we examined the two dimensions - the internal police decision, and whether or not police have the "last word" - separately. At least in 2002, under the more legalistic regime of the Young Offenders Act, they seem to be two entirely distinct questions. The question of whether the police or the Crown make the decision concerning laying a charge against a young person, and its impact on the exercise of police discretion, are discussed in Chapter III. In this section, we look the various approaches used by the police services in our sample to the internal allocation of the authority and responsibility to lay a charge, or to recommend a charge, if the final decision is made by the Crown.

Our findings suggest a re-conceptualization of Conly's (1978) models of the authority to charge, with four categories: (1) front-line autonomy, in which front-line (patrol) officers have the authority to make the decision without review by other officers; (2) front-line with review, in which front-line officers make the decision, or a recommendation, which is then reviewed by another officer, such as a patrol supervisor, a member of GIS, or a member of the youth squad, if there is one; (3) youth squad, in which the youth section, or a dedicated youth officer, is responsible for handling youth-related cases and making the decision to charge youth suspects, without input from patrol officers; and (4) GIS, in which a member of the GIS (General Investigation Section, i.e. a detective) makes the decision without input from patrol officers.

No doubt these bald categories oversimplify a complex reality. In any organization, few decisions are made by one person acting entirely alone and without consultation; nor is "review by a supervisor" necessarily any more than a rubber stamp procedure. Nevertheless, our informants - whether patrol, investigator, or management - seemed unequivocal in their views on whether the front-line officer had the authority to lay a charge, or whether the decision lay ultimately with another officer. Figure IV.13 shows the distribution of our sample into these categories.[77]

Because so few police services fit into the last two of the categories described above, the analysis which follows includes the 97% of our sample which fell into the first two categories.

Figure IV.13 Procedural models for the authority to charge young persons

Figure IV.13 - Procedural models for the authority to charge young persons - If the following image is not accessible to you, please contact Youth Justice Policy at Youth-Jeunes@justice.gc.ca for an alternate format.

Description

Front-line autonomy is much more common in smaller police services and communities: 54% of the rural and small town agencies in the sample said that the authority to charge rests with the front-line officer, compared with 25% of suburban/exurban forces, and only 19% of metropolitan forces. Front-line officers have the authority to charge in 65% of police services with less than 25 officers, 39% of services with 25 to 99 officers, and 8% of those with 100 or more officers. They have authority to charge in 76% of agencies with 1 to 3 ranks, 18% of agencies with 4 to 6 ranks, and 7% of those with 7 or more ranks. 92% of the OPP detachments in our sample said that front-line officers have the authority to charge, compared with 46% of the RCMP detachments, and 18% of the independent municipal forces. The regional distribution of procedural models is shown in Figure IV.14.

Agencies in which front-line officers have the authority to charge without review are slightly more likely to say that they use informal action in general, and informal warnings, parental involvement, and questioning the youth at home or the station in particular. Front-line police officers are twice as likely to view minor offences as incidents that should "almost always" be dealt with informally if they have sole decision-making power (24% vs. 12%). These findings suggest that front-line officers are more likely to use discretion with youth if their decisions are not subject to review.

Figure IV.14 Regional distribution of procedural models for the authority to charge young persons

figure IV.14 Regional distribution of procedural models for the authority to charge young persons - If the following image is not accessible to you, please contact Youth Justice Policy at Youth-Jeunes@justice.gc.ca for an alternate format.

Description

Agencies in which front-line police officers do not have sole discretion with youth-related incidents are more likely to make referrals to external agencies (69% vs. 39%), and to use pre-charge diversion (61% vs. 35%), than agencies with no review of front-line decisions. This is consistent with the comments made by patrol officers during interviews. In agencies where there is no youth section or dedicated youth officer, many front-line personnel indicated that: (1) a pre-charge program does not exist, or (2) they do not have the authority to refer to pre-charge diversion, or (3) they are not entirely sure when it is appropriate to refer a youth to pre-charge diversion. Although patrol officers seem confident of their ability to choose between informal action or laying a charge, they tend to know less about available external resources and about alternative measures programs than a supervisor or youth specialist. Similarly, officers in police agencies where front-line decisions to charge are reviewed are more likely to say that they find alternative measures effective (73% vs. 50%). This supports previous findings which suggested that most patrol officers do not receive feedback about the outcome of alternative measures referrals, and are not entirely sure if alternative measures are effective with the youth whom they have encountered.

Statistical data from the UCR2 Survey on the clearance status of youth-related incidents could, in principle, clarify the extent to which agencies with front-line autonomy and with review use informal action and referral to pre-charge diversion. Unfortunately, UCR2 data are available for too few police agencies in our sample to draw any conclusions with confidence. We can analyse data from the UCR Survey to determine the proportion of apprehended youths who are charged by police agencies with these two types of charging procedure, but the UCR data do not distinguish between informal action and pre-charge diversion - and the interviews lead us to expect that agencies with front-line autonomy will use more informal action but less diversion.

In fact, the UCR data suggest that agencies with front-line autonomy tend to have higher charge rates than those with review. Among independent municipal services, those with front-line autonomy charged 74% of apprehended youth during 1998 to 2000; whereas those with review of front-line decisions charged 68% of apprehended youth. Among RCMP detachments, those with front-line autonomy charged 61% of apprehended youth, versus a charge rate of 51% for detachments with review.[78]

However, these statistics are misleading, because they do not distinguish between agencies with and without youth squads. Table IV.2 shows the charge rates for police services, broken down by procedural model for charging, and whether or not there is youth specialization. The analysis is done for three groups of police agencies: all agencies for which data were available (78); agencies in metropolitan areas only (27), and independent municipal agencies only (45). There were too few cases in other categories to analyse with confidence.

Table IV.2 Proportion of apprehended young persons charged, 1998-2000, by the procedural model for charging and youth specialization
  All agencies (% charged) Metropolitan agencies (% charged) Independent municipal agencies (% charged)
Autonomy, with youth specialization 60% 59% 60%
Review, generalist model 62% 70% 68%
Review, with youth specialization 69% 70% 69%
Autonomy, generalist model 76% 80% 79%

In each case, the model which is associated with the lowest charge rates is front-line autonomy in a police service which has youth specialists. The model associated with the highest charge rate is front-line autonomy with no youth specialization. The other two models produce intermediate results. The implication is that front-line autonomy results in greater use of discretion not to charge young persons if the front-line officer has training to deal with youth, or if the police service is committed to using discretion with youth, as indicated by its establishment of a youth squad. If there is no youth specialization, or commitment to special treatment for youth, then autonomy appears to result in front-line officers using their discretion to lay charges against youth. Thus, in a police agency without youth specialization, it is the review by another officer, whether supervisor or GIS, which appears to moderate the tendency of front-line officers to lay charges.

There were no systematic differences between agencies with front-line autonomy, and those with review, in the use of the various methods of compelling appearance or in most of the reasons given to detain a young person until a judicial interim release hearing. However, officers in agencies with review of front-line decision-making are more likely to say that they detain in order to get judicial bail conditions (43% vs. 6%), if the young person is before the courts (33% vs. 19%), or if the offence is gang-related (13% vs. 0%). Also, officers in agencies with review of front-line decision-making are more likely to say that they "almost always" charge and detain youth who are repeat offenders (43% vs. 26%) and to get release conditions (26% vs. 13%). Our data suggest that front-line officers do refer to departmental policies regarding compelling appearance, since officers in agencies where the front-line officer has sole discretion are twice as likely (56% vs. 26%) to cite "departmental policy" as the criterion for deciding when to charge and detain.

Our findings concerning the impact of front-line autonomy suggest three themes. First, the likelihood of police officers using informal action with young offenders is higher in police services where front-line officers are autonomous, and where there is a commitment to the use of discretion with youth. Second, agencies in which there are no dedicated youth officers, and front-line officers decide alone on the disposition of youth-related cases, tend to use referrals to external agencies and pre-charge diversion less, and lay charges more, than agencies in which a supervisor or youth specialist is involved in the decision. Finally, autonomous patrol officers appear to use less intrusive measures to compel the attendance of a young person in court. In cases where they do detain a young person they tend to do so as a result of stipulations within departmental policy.

These findings support arguments raised by writers on the principles of problem solving by police, and community policing. Crank (1997) suggests that administrators should allow the rank and file more discretion by relaxing the traditional requirement of requesting permission and the rigid guidelines for accountability. Patrol officers, who handle the vast majority of youth-related crime, appear to feel more free to resolve incidents informally if they are not concerned about their decisions being overruled, or about suffering adverse consequences because another officer felt that another action would have been more appropriate. However, this autonomy must be accompanied by a commitment on the part of the police service to the use of discretion with young offenders, or patrol officers may make more use of charging than if they were subject to review.


  • [73] This and the following paragraphs rely on Conly (1978)
  • [74] Regardless of whether the police or the Crown made the decision, it was the police who laid the information (charge(s)) with the court.
  • [75] Conly found this to be the case in Halifax, Gloucester, Nepean and Calgary.
  • [76] He found this the pattern in Dartmouth, Ottawa, Hamilton, Windsor, Regina, and Edmonton.
  • [77] Percentages are based ont he 85 police agencies for which we could obtain this information.
  • [78] The comparison could not be made for OPP detachments, since all but one have front-line autonomy.

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