Youth Court Judges' Views of the Youth Justice system: The results of a survey

Conclusion

The most obvious simple conclusion that can be drawn from the results of this survey is that youth court judges appear to work in quite different "youth justice environments" and respond in a considerably varied fashion to the cases that are before them. On almost every question, there were judges who answered at each end of a continuum - whether the question pertained to the usefulness of sentence submissions from counsel, the adequacy of choices of sanctions, or the apparent likelihood of a relatively long custodial sentence being reviewed.

Judges vary on whether they think that large numbers of cases that come before them could be dealt with just as adequately outside of the youth justice system. To some extent, this relates to their views about the adequacy of outside programs (e.g., alternative measures). However, it should be remembered that large numbers of judges - particularly those outside of Quebec - are not confident that the "youth court experience" is beneficial to youths.

The inter-connectedness of the youth justice (criminal law) system and child welfare concerns was manifested repeatedly in the judges' responses. Many judges, particularly those outside of Quebec, saw detention before trial as necessary for child welfare reasons. The youth's well-being was also a consideration for many judges in sentencing, generally, and in the handing down of short sentences, in particular. About a quarter of the judges indicated that the range of sanctions available to them was inadequate.

More than half of the judges indicated that "public opinion" is mentioned at least occasionally by the Crown attorney or others. Similarly, the prevalence of crime in the community is also frequently raised in the courtrooms of almost a third of the respondents. "Prevalence" is reported to be raised "occasionally" in the courtrooms of an additional 57% of the responding judges. The raising of these issues (public opinion and prevalence of youth crime) is particularly interesting for two reasons. First, the mention of "prevalence" and "public opinion" seems to co-vary. Second, research suggests that there is, in fact, very little that judges can do to affect the prevalence of crime in the community in which they sit. Judges who hear a great deal of talk about the "prevalence" of crime tend to indicate that they take "prevalence" into account. Taking prevalence into account, it would appear, is related to the importance that judges place on "general deterrence" in the sentencing of youths: those who indicate that they "always or usually" consider the prevalence of youth crime in the community put more importance on general deterrence at sentencing.

Considerable variation existed across judges regarding the usefulness of Court of Appeal decisions in helping guide the sentencing decision. Approximately half of the judges indicated that they found Court of Appeal judgements to be "very" or "somewhat" helpful. Quebec judges were most likely to see their appeals court in a favourable light on this dimension. However, Courts of Appeal were not seen as terribly helpful to many other youth court judges. In this context, it should be little surprise that both within and across provinces and territories, these judges vary dramatically in their approach to youth court cases.

As with other responses, judges varied with respect to the importance which they attributed to various factors in the sentencing process. In deciding on custody, for example, offence seriousness and criminal record were the two most important factors. However, welfare concerns were also relevant for many judges. Over a third of judges indicated that a youth being "out of control" was a relevant factor in the decision to send a youth to custody in "most, almost all, or all" cases. An inadequate home or poor living conditions was also seen by over a third of judges as a relevant factor in at least half of the cases in which custody was imposed by them.

So what do these findings show? As we have repeatedly emphasized, judges vary in their approach to decision making in youth court. However, as these same judges frequently stressed, this variation is a reflection of the degree to which the youths, themselves, vary. What can be said about this variation? One problem - some might say it is a strength - of the YOA is that no one can be said to be "wrong." If a judge holds a belief in the efficacy of "short sharp [custodial] shocks", that judge cannot be found to be wrong by other judges who do not believe that short sharp shocks have any beneficial impact.

In the context of a discussion of evidence of disparity of approach and outcome for similar adult court cases, one judge once told me that if two judges approached the same case in different ways and arrived at quite different conclusions (or sentences for an offender) that we should consider the possibility that "maybe both judges were correct." That is, certainly, one way of approaching justice generally, or youth justice, in particular.

Another way would be to develop policy regarding that which can realistically be accomplished within the system and to design a justice system so as to maximize the likelihood of achieving the goals of the system. One advantage of first identifying the realistic goals of a youth justice system is that one has the opportunity of knowing whether one is moving closer to, or further from, those goals. Some might argue that the choice of whether to have realistic goals, and given these realistic goals, what they might be, should be matters of public policy.

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