Comparison of Case Processing Under the Young Offenders Act and the First Six Months of the Youth Criminal Justice Act

Pre-trial Detention

The YCJA contains provisions that restrict the use of pre-trial detention and encourage the use of alternatives by police and justices of the peace/youth court judges, including:

  • a prohibition on the use of detention as a substitute for child welfare, mental health or other social measures;
  • a presumption against the use of detention if the young person could not be sentenced to custody if found guilty of the offence; and
  • a requirement that the judge inquire about the possible availability of a "responsible person" to provide an alternative to detaining the young person.

The youth court judge or justice of the peace is required to presume that detention of a young person is not necessary for the protection of the public if the young person could not, on being found guilty, be sentenced to custody on the grounds set out in paragraphs 39(1)(a) to (c). This subsection sets out three minimum or threshold criteria for the use of custody as a sentence:

  • the young person has committed a violent offence;
  • the young person has failed to comply with two or more non-custodial sentences (i.e., a breach of probation or other community sentence);
  • the young person has committed an indictable offence for which an adult would be liable to imprisonment for more than two years and has a history that indicates a pattern of findings of guilt.

It was originally expected that these restrictions would reduce the use of pre-trial detention under the YCJA. This does not appear to have occurred; many jurisdictions have reported no large change in the counts of youth in detention. This section compares the pre- and post-law situations with regard to the percentage of young persons detained by police at apprehension and by the courts after bail hearings. Although our data are very different from detention counts – the counts are the number actually in detention in a specified period and our data are the proportions held by police and the courts – both indicators of detention use show that there is little positive change in pre-trial detention practices.

1. Police Detention at Arrest

The comparison data suggest that the lack of change may be in part related to the inflexibility of police release practices. No city showed a decrease in the percentage of youth held by police for a bail hearing. In Edmonton, an increase in the percentage detained was statistically significant (Table 5). Under the YOA, 45 percent of youth were held by police, compared to 52 percent under the YCJA.

Unlike most analysis in this report, Vancouver and Surrey data are separated for this discussion of pre-trial detention. This was done because in the YOA survey, it was found that 79 percent of youth were detained in Vancouver, compared to 35 percent in Surrey. Post-law, the Vancouver proportions are almost identical to the pre-law finding – that is, more than four out of five young persons were held for a bail hearing.

There was an increase in the proportion of youth released on a police undertaking in Halifax, Toronto/Scarborough and Vancouver/Surrey (Table 6). Because most undertakings entail conditions, they are viewed as more onerous than other forms of police release.

Number of Conditions on Police Undertakings

Table 7 shows the number of conditions imposed on young persons that were released by police. In the Introduction, it was explained that there are really three datasets in this analysis: (a) the baseline YOA data for FY 1999-00; and two sets of post-legislation data defined as (b) the “pure” post-YCJA cases that began after April 1, 2003 and (c) cases that began before that date but were concluded after the law began. Table 7, unlike other tabulations in this section, includes group (c). The incidents that brought the youth in group (c) to the attention of police occurred before the new Act – and sometimes well before it. Consequently, the police decisions about pre-trial detention were also made prior to the Act’s coming into force. Both the pure post-law cases and this group show similar distributions – larger percentages had one or more release condition and the mean number was significantly higher than the pre-law group. In other words, these apparent changes in police decisions occurred before the law came into effect and cannot necessarily be attributed to the YCJA. Indeed, it seems unlikely that there is any causal relationship between the change in the law and the change in police practices in this regard.

Police Detention Controlling for Legal Factors

The legal factors introduced as “controls” in the police decision to detain were whether a hybrid or indictable offence against the person (i.e., a violent offence) was involved in the case, whether the young person had a past breach of probation, and whether the youth had three or more past convictions of any type. It should be remembered that Table 5 shows that the overall proportion detained by police slightly increased after the new Act came into effect, from 45 to 52 percent.

Panels (a) and (b) of Table 8 shows that after the YCJA, the percentage detained by police was not related to the presence of an offence against the person, regardless of whether the offence was hybrid or indictable (although youth without violent charges were disproportionately held by police). Therefore, there is no discernible relationship among the three factors – the change in legislation, so-called violent offences, and police release practices. In panels (c) and (d), however, larger percentages of young persons with three or more convictions in the past and those with a past conviction for breach of probation were detained than were youth with no such offence history. These data suggest that the new law may have had an effect on police decisions for young persons with several past convictions and a history of violating the terms of probation orders; it is possible, too, that the charged pool from which detained cases were drawn under the YOA differed in key ways from those detained under the YCJA.

Table 8: The Percentage of Cases Detained by Police before and after the YCJA, by Selected Case Characteristics

2. Detention by the Youth Court

The next stage in the decision-making process for police-detained young persons is the court decision, made by a justice of the peace or a judge depending on the circumstances and the court. Approximately 60 percent of detained youth were released by the youth court in both time periods (Table 9). In Halifax, however, only 35 percent of detained youth were released under the YCJA compared to 69 percent under its predecessor; there were only 17 cases in the YCJA sample, so this finding should be viewed with caution. A similar pattern was evident in Winnipeg but the change was not statistically significant.

Table 9: The Percentage Detained by the Court before and after the YCJA, by Court Location

Table 10: Type of Release by the Court before and after the YCJA, All Courts Combined
Type of court release YOA
sample
YCJA
sample
  Column percentages
“Responsible person” – s. 7.1 of the YCJA 8.1 4.7
Undertaking to appear 61.0 51.9
Recognizance 26.9 28.3
Released, not known how 4.0 15.1
Total percent 100.1 % 100.0%
Total number of cases 495 106

The typical means of release by the court remained approximately the same in the YOA and YCJA samples – the majority of youth are released on an undertaking to appear, followed by recognizances (Table 10). There was an increase in the category “released by unknown means” but this is probably due to data collection issues. As did the YOA, the new legislation encourages release to a “responsible person” if the youth is liable for detention. This provision was infrequently used under the YOA (8 percent) and there has been no take-up under the YCJA (5 percent).

Conditions of Release on Bail

There was no change in the mean number of release conditions after proclamation (Table 11). However, the proportion of youth released without conditions was slightly higher among YCJA cases – again, this apparent difference may be due to data collection problems in the YCJA cases (last row of Table 11).

Table 11: The Number of Court Release Conditions before and after the YCJA
Number of conditions: YOA
sample
YCJA
sample
  Column percentages
1 or 2 conditions 20.3 28.6
3 to 5 conditions 64.0 49.4
6 or more conditions 15.7 22.1
Total percent 100.0% 100.1 %
Total number 464 77
Mean number of conditions 3.9 3.9
Median number of conditions 4.0 3.0
% of cases with no conditions (but released on an undertaking, recognizance, etc.) 2.7% 11.5%

Only one condition of court release changed (Table 12). For unknown reasons, proportionately fewer youth in the post-law period had a condition not to communicate with other persons, usually a co-accused. The finding is probably related to the types of cases in the YCJA sample. In addition, even though more released youth in the pure YCJA group were obliged to report to police or correctional staff (e.g., bail program), the last column shows that this change began before proclamation and can therefore probably not be attributable to the YCJA. The increase in reporting is more likely to be related to the implementation or expansion of bail programs after 1999. (All cases in the last column were detained prior to the YCJA.)

Table 12: Type of Court Release Conditions: YOA Cases (Baseline), Cases Beginning after the YCJA, and Cases Beginning before the YCJA but Concluded after Proclamation
  Baseline
cases
First 6 months cases
Type of conditions: YOA
sample
Proceedings
all after YCJA
Began before
YCJA & concluded after
Non-communication with victim 27.5 21.8 50.0
Non-communication with others 41.7* 25.6* 39.9
Report to police/other at specified intervals e.g., daily, weekly 31.1* 48.7* 44.0*
Area restriction 35.0 34.6 49.4
Attend school or work 28.8 29.5 35.7
Abstain from alcohol or non-prescription drugs 22.4 29.5 33.3
No weapons 21.7 24.4 48.2
Curfew 54.3 48.7 43.5
House arrest 11.2 5.1 16.7
Total number of cases 466 78 168

* Note: The shaded pairs are statistically significant at p<.05 or less, according to the chi-square statistic.

Youth Court Detention Decisions Controlling for Legal Factors

Table 13, below, is identical to Table 8 on the factors associated with police detention, except that Table 13 refers to youth court detention decisions. Results for panels (a) and (b) are similar to those in Table 8 – that is, the percentage detained with a violent offence did not differ in the two time periods. However, the number of violent cases was small in the YCJA sample. Young persons with multiple previous convictions were not detained in larger proportions after the new legislation, according to panel (c); these data also indicate that those with three or more past findings of guilt were twice as likely as those with a less lengthy prior record to be held by the court. Panel (d) shows that cases involving a prior breach of probation did not differ in the YOA and YCJA samples in terms of the proportions held by the youth court.

In summary, detention decisions in the youth courts sampled were not greatly different under the YOA and the YCJA. These results should be viewed with caution because of the small numbers in the YCJA sample.

Table 13: The Percentage of Cases Detained by the Court before and after the YCJA, by Selected Case Characteristics

a) Hybrid offence against the person (less serious violence):
% detained by court YOA
sample
YCJA
sample
YOA
sample
YCJA
sample
  No person charge Person charge
Detained by court 38.3% 46.7% 31.9% 26.5%
Total number of cases 595 80 188 34
Chi-square, df=1, p value 0.06, n.s. 0.40, n.s.

(b) Indictable offence against the person (more serious violence):
% detained by court YOA
sample
YCJA
sample
YOA
sample
YCJA
sample
  No person charge Person charge
Detained by court 36.5% 42.9% 38.8% 43.8%
Total number of cases 696 168 83 16
Chi-square, df=1, p value 2.30, n.s. 0.14, n.s.

(c) Prior convictions
% detained by court YOA
sample
YCJA
sample
YOA
sample
YCJA
sample
  0 to 2 past convictions 3+ past convictions
Detained by court 22.5% 24.7% 57.5% 62.5%
Total number of cases 463 97 320 88
Chi-square, df=1, p value 0.24, n.s. 0.71, n.s.

(d) Prior probation breaches
% detained by court YOA
sample
YCJA
sample
YOA
sample
YCJA
sample
  No past probation
breach conviction
Past probation
breach conviction
Detained by court 30.1% 39.1% 61.3% 53.2%
Total number of cases 615 138 168 47
Chi-square, df=1, p value 4.26, p<.04 1.01, n.s.

Note: The shaded pair is statistically significant at p<.05, according to the chi-square statistic.

3. Number of Days Detained

The average number of days detained did not significantly differ in the two periods; in 1999-2000 the mean days held was 11.9 and in 2003 the average was 10.6 and in both samples, the median was 2.[4] There was a significant difference, however, in the percentage of youth held for less than one day or, more accurately, whose dates of entry and release were identical – 19 percent compared to 29 percent after the new law. When the courts were examined individually, the latter pattern was only found in Toronto/Scarborough and Vancouver/Surrey. This finding probably has no relation to the new legislation itself; rather, the availability of justices of the peace is probably the more influential factor.

4. Seriousness of Charges Involved in Cases Detained by Police and the Court

This section examines whether the nature of the charges involved in the case differed for young persons who were detained by the police and by the youth court. If seriousness of cases had increased after the proclamation of the new legislation, we would expect that there would be an increase in the percentage of indictable person and property offences (panels a and b), and in the percentage of all indictable offences (panel c) when the two samples are compared. Table 14 shows that this has not occurred. The sole significant change involves the indictable cases detained by police – 38 percent in the YOA but only 25 percent in the YCJA sample of detainees involved an indictable offence (panel c). The same pattern was found in the court detention data, but the difference did not reach the significance level of p<.05.

Table 14: Major Offence Categories of Cases Detained by the Police and the Youth Court before and after the YCJA
% of detained cases involving: YOA
sample
YCJA
sample
YOA
sample
YCJA
sample
  Police detention Court detention
(a) Indictable offence against the
person (more serious violence)
11.2% 8.2% 11.7% 8.1%
Chi-square, df=1, p value 1.43, n.s. 0.86, n.s.
 
(b) Indictable offence against
property
22.1% 17.4% 21.0% 20.9%
Chi-square, df=1, p value 2.07, n.s. 0.00, n.s.
 
(c) Any indictable offence 38.2% 25.1% 37.7% 26.7%
Chi-square, df=1, p value 11.69, p<.001 3.49, n.s.
 
Total number of detained cases 809 195 300 86

Note: The shaded pair is statistically significant at p<.05, according to the chi-square statistic.

In conclusion, there was no increase in the percentage of youth detained by police and the youth court on more serious charges; indeed, the data suggest that more youth were being detained for less serious, non-indictable offences under the YCJ A.


[4] In order to make the data comparable, very long detention stays (over 120 days)in the pre-law sample were excluded. These data are not shown in table form.

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