The Use of Custody under the Youth Criminal Justice Act

Looking at Figure 5 – trends in the rate (per 1,000 12-17 year olds) of guilty cases in our three offence groupings over time – one sees similar patterns as those presented in Figure 3. The “very minor” and “somewhat minor” cases have generally been decreasing while all other cases have remained relatively stable. However, all three categories of offences saw relatively large reductions in the first year of the YCJA.

Figure 5: Rate of guilty findings (per 1,000 youths in the community) for offences of three levels of severity.

Figure 5: Rate of guilty findings (per 1,000 youths in the community) for offences of three levels of severity.

Description

Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault

Looking at Figure 6 – the proportion of the youth court caseload (found guilty) that our three offence groupings accounted for over time – shows similar trends as those seen in Figure 4. “Very minor” cases that have been found guilty have accounted for roughly 37% of the youth court caseload throughout the 1990s. During this same period, the “somewhat minor” cases have been accounting for a smaller proportion of the caseload and “all other offences” have been accounting for a larger proportion. However, during the first year of the YCJA, there appears to be a more pronounced drop in the proportion of very minor cases (roughly 3%) and thus a slight increase in the proportion of the youth court caseload account for by the other two offence groupings.

Figure 6: Change, over time, in the relative mix of guilty cases in youth court

Figure 6: Change, over time, in the relative mix of guilty cases in youth court

Description

Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault

Overall then, in the first year of the YCJA, there was an unusually large reduction in the total number of cases going to court and in the number of cases in which one or more guilty findings were registered. This drop was larger than in previous years, suggesting that the YCJA had reduced substantially the overall use of youth court. The result of the decreases – found most dramatically among the most minor offences – generally resulted in those types of offences accounting for smaller proportions of the youth court caseload (coming into court or found guilty). Hence the group of cases that includes the most serious offences constitutes a larger proportion of the youth court case load (coming into court, or being found guilty).

Part of the drop in the use of custody that we have shown in Figure 1, and more dramatically in Figure 2, then, is a result of the fact that there are fewer cases coming into court and found guilty and, in particular, a relatively large decrease in the number of very minor cases coming into court and being found guilty.

The question we turn to now is the fundamental one: How is custody being used in youth court? Because there was a drop in 2003/4 in the rate (for all three levels of seriousness) of cases being brought to court and found guilty, it is not surprising to see that the rate (per 10,000 youths in the community) being sentenced to custody is also decreasing for all three groups of cases (Figure 7). Once again, perhaps because there are relatively fewer such cases being brought to court, the reduction in the use of custody for the most minor offences appears to be largest.

Figure 7: Rate (per 10,000 youths in Canada) of custody sentences

Figure 7: Rate (per 10,000 youths in Canada) of custody sentences

Description

Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault

Since the largest reduction in the first YCJA year is found in the rate of sending the most minor cases to court, they account for a smaller proportion of the cases sentenced to custody (Figure 8). Similar to the patterns presented in Figures 4 (going into court) and 6 (guilty cases), when looking at the first year of the YCJA one sees that the most minor cases are now accounting for a smaller proportion of the custodial sentences and, thus, the most serious offences account for a larger proportion (Figure 8).

Figure 8: Change, over time, in the relative mix of cases sentenced to custody (1991/2 to 2003/4)

Figure 8: Change, over time, in the relative mix of cases sentenced to custody (1991/2 to 2003/4)

Description

Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault

Sentencing. We have demonstrated quite clearly that the number and the mix of cases going into custody in Canada changed quite dramatically in 2003/4. Fewer cases – very minor, relatively minor, and all others – went into court and into custody. And, generally, of the cases that resulted in a custodial sentence, a higher proportion of them were the more serious cases than in the past. Some of this change is, however, directly attributable to the change in the mix of cases going into youth court.

We turn now to “sentencing” findings, and ask the question: What proportion of the “very minor”, “somewhat minor”, and “all other” offences for which there is a guilty finding end up with a custodial sentence? These data are shown in Figure 9. One should keep in mind, when reading Figure 9, that it is likely that the least serious instances of each of these three groupings of offence have tended to be screened out at earlier stages of the youth justice process (e.g., by the police using extra-judicial measures with the youth) [9].

Figure 9: Percent of cases with a guilty finding getting a custodial sentence (for “very minor”, somewhat minor, and other offences). Canada, 1991/2 through 2003/4.

Figure 9: Percent of cases with a guilty finding getting a custodial sentence (for “very minor”, somewhat minor, and other offences). Canada, 1991/2 through 2003/4.

Description

Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault

In the early 1990s, the relative likelihood of cases of different seriousness ending up with a custodial sentence makes sense: The “very minor” cases were least likely to receive a custodial sentence, and the “other” offences (the group that includes, but is not limited to, the most serious cases) were most likely to result in a custodial sentence. However, during the 1990s, there was a rather dramatic increase in the proportion of the most minor cases that received a custodial sentence such that by the beginning of this century these “minor” cases were more likely to result in custody than the other two groupings of (presumably) more serious cases.

In the first year of the YCJA, there was a 7% reduction in the proportion of “very minor” cases sentenced to custody (from 31% in 2002/3 to 24% in 2003/4). The proportion of “somewhat minor” offences resulting in a custodial sentence also declined from 24% in 2002/3 to 20% in 2003/4. The proportion of “all other offences” sentenced to custody dropped by about 1.7% in the first year of the YCJA – with 28.5% sentenced to custody in 2002/3 and 26.8% sentenced to custody in 2003/4. This pattern – the largest decline in the use of custody being for the most minor offences is, of course, exactly what one would expect from the sentencing principles in the YCJA (Sections 38 and 39). To the extent that sentences became more proportionate to the offence seriousness than they had been in the past, the reduction in the use of custody should be largest for the least serious cases.

However, as already noted, there is a peculiarity in the data for the “most minor” cases. We decided, therefore, to disaggregate this grouping into three groups: the two property offences (theft under $5,000 and possession of stolen property) and each of the two sets of administration of justice offences. The proportion of cases in each of these three groups receiving a custodial sentence is shown in Figure 10.

Figure 10: Percent of guilty cases receiving a custodial sentence for very minor property crimes, failure to appear, and failure to comply with a disposition. Canada, 1991/2 through 2003/4.

Figure 10: Percent of guilty cases receiving a custodial sentence for very minor property crimes, failure to appear, and failure to comply with a disposition. Canada, 1991/2 through 2003/4.

Description

Clearly much of the peculiar pattern that was seen in Figure 9 for the “very minor” offences was due to changes in the rate at which custodial sentences were handed down for the administration of justice offences as well as an increase in the number of administration of justice offences coming to court.[10] Roughly 15% of guilty theft under/possession of stolen property cases were sentenced to custody in 1991/2. That proportion rose to around 22% in the mid-1990s and then stabilized. However, roughly 29% of guilty YOA/YCJA offences were sentenced to custody in 1991/2 and that percent continued to rise throughout the 1990s until 2000/1 where it hit a high of 42% sentenced to custody – an increase of 13%. In the first year of the YCJA, however, the proportion of these cases sentenced to custody decreased 12% – from 40% down to 27%.

Jurisdictional Variation. It would appear that there was not only a reduction in the number of cases going to court (and the number of cases with one or more findings of guilt) but also reduction in the use of custodial sentences. This reduction in the use of custodial sentences appears to have been the result of two quite independent factors: the reduction in the overall youth court caseload and a reduction in the proportion of relatively comparable groupings of offences (of those found guilty) sentenced custody.

Unfortunately, CCJS was unable to provide us with an estimate of the past court history of the youths. Hence it is possible that even for what might appear to be “comparable” groups of cases, the groups are not comparable on dimensions directly related to sentencing. However, one would expect that the groupings of YCJA cases (those in 2003/4) would, if anything, be on average more serious cases (i.e., that the more minor cases would have been screened out along the way). Hence the fact that there is a reduction in the proportion of guilty cases receiving custody (shown in Figures 9 and 10) is rather strong evidence that sentencing, in 2003/4 was being carried out in a manner that was different from the manner in which it had been done in earlier years. In particular, we believe that there is strong evidence that for at least some groupings of offences, equivalent cases under the YCJA were less likely to be receiving a custodial sentence than they would have under the YOA.

What is the case for Canada as a whole, however, is not necessarily true for individual jurisdictions. This purpose of this paper, however, was not to explore, in detail, jurisdictional differences. However, we thought it would be useful – in part as a way of testing the strength of the findings – to examine the consistency across jurisdictions in the drop in the numbers of cases to court, cases being found guilty, and cases to custody.

Because there had been a general decline in these numbers in the years prior to the implementation of the YCJA in 2003/4, we felt that it was necessary to compare the size of the decline (in the YCJA year) in cases to court, guilty findings, and custodial sentences to the earlier decline. Thus for each of the 13 jurisdictions, and for Canada as a whole, we computed the average annual decline (over the five years ending in 2002/3) in the number of cases and compared that to size of the decline from 2002/3 to 2003/4. These data are shown in Table 1.

Table 1: The change in the number of cases coming into court, found guilty/transferred and sentenced to custody over the past five years compared to the change in cases under the first year of the YCJA (2002/3 to 2003/4)
  All cases going to court All cases going to court Cases sentenced to custody
Average annual change over the previous 5 years Change from 2002/3 to 2003/4 Average annual change over the previous 5 years Change from 2002/3 to 2003/4 Average Annual change over the previous 5 years Change from 2002/3 to 2003/4
Canada -2.514 -14.127 -2.063 -10.271 -887 -4.548
NFLD and Labrador -59 -319 -75 -205 -4 -231
PEI -8 -85 -15 -71 -9 -56
Nova Scotia -178 -222 -156 -304 -22 -269
New Brunswick -74 -274 -58 -420 -7 -173
Quebec -534 -363 -440 -449 -147 -378
Ontario -137 -7.816 -181 -5.032 -376 -1.248
Manitoba -389 -183 -134 -298 -38 -297
Saskatchewan 13 -1.176 -113 -1.028 -18 -472
Alberta -420 -1.820 -356 -1.276 -121 -587
BC -719 -1.638 -516 -1.027 -136 -721
Yukon -41 -83 -30 -26 -13 -23
NWT* 28 -183 -4 -118 -17 -80
Nunavut** 41 35 25 -17 9 -13
  • * NWT = included Nunavut in 1998/9 and removed it in 1999/2000. We therefore looked at the NWT from 1999/2000 onwards so the average is over the past three years.

  • ** Nunavut = only had data available since 1999/2000 therefore the average is over the past three years. There are an unknown number of cases missing from 1999/2000.

There were only three instances in which the average decline in the previous five years was larger than the decline that occurred in the first year of the YCJA (see shaded boxes in Table 1). We would suggest that these data strengthen the inference that the change that occurred in 2003/4 was due to a single national event – the implementation of the YCJA.


  • [9] If this is, in fact, correct, and there had been no change in sentencing practice when the YCJA came into force, one would have expected that the “rate” of court cases receiving a custodial sentence would have increased.
  • [10] For example , though the overall court caseload was decreasing from 1991/2 onwards, the number of YOA offences (almost exclusively failure to comply with a disposition increased from 7669 cases in 1991/2 to 11,217 in 1999/00.

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