Comparison of Case Processing Under the Young Offenders Act and the First Six Months of the Youth Criminal Justice Act
Factors Affecting Custodial Sentences
As already discussed, the YCJA brought changes to the sentencing regime for youth convicted of criminal offences. A major change is the prohibition against the imposition of a custodial sentence – including deferred custody and supervision – unless the young person has committed a violent offence; the young person has failed to comply with non-custodial sentences; the young person has committed a serious indictable offence and has a history that indicates a pattern of offences; or in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that it would be impossible to impose a sentence other than custody.
Multivariate analysis was used to determine whether the importance of the factors listed in the last paragraph changed in the two time periods.
The following lists the independent variables included in the model. The factors that attempt to operationalize the criteria for custody in the YCJA are italicized.
- demographic characteristics of young persons: being female, age in years, being of Aboriginal background, and having one or more social or psychological problem
- legal factors relating to prior record: one or more past custody sentence; more than one past conviction for breach of probation
- legal factors relating to current case: number of current charges; one more indictable person conviction; one or more hybrid person conviction; one or more hybrid property conviction; one or more probation breach conviction; one or more bail-related conviction
- legal factor relating to prior record and current case: both three or more prior convictions and an indictable current conviction.
This analysis is not a definitive analysis of factors affecting custody sentences. Rather, the primary interest is to determine the extent to which violent offences, past failure to comply with a non-custodial sentence (probation), and a pattern of offending and a serious current conviction affect the use of custody before and after the YCJA. In a similar way, we want to know whether there were changes in the effects of minor but high frequency hybrid property, probation breaches and bail offences.
The differential effects of the key legal factors before and after the YCJA (Table 33) were as follows:
- Under the YOA, the strongest predictor of custody was more numerous current convictions, followed by a current probation breach conviction.
- Under the YCJA, the strongest predictor was the presence of a pattern of offending plus a serious (indictable) current offence.
- After the law, the less serious, hybrid offences against property and the person showed a negative relationship to custody (i.e., having a conviction for these offence groups decreased the probability of custody).
Toronto and Scarborough :
- In the pre-law sample, having a prior custody sentence, more numerous current convictions and an indictable offence against the person were most influential in the DCSO/custody cases.
- The presence of a pattern of offending plus a serious current offence was by far the most influential factor under the YCJA and the sole statistically significant factor associated with the case.
- Having a prior custody sentence was the strongest predictor under the YOA, although also being of Aboriginal origin, more numerous current convictions and having a pattern of offending plus a serious current offence were also statistically associated with custody.
- Having a prior custody sentence, more numerous current charges, having a current hybrid person conviction and having a pattern of offending/serious current offence predicted custody in 2003. Bail convictions were negatively associated with custody, a finding which is consistent with the intent of the new law. Being Aboriginal and having social/psychological problems also increased the likelihood of custody.
- Having a prior custody sentence, more numerous convictions, and a pattern of offending plus a serious current offence predicted custody under the Young Offenders Act.
- Under the YCJA, a past custody sentence was most influential followed by having a current conviction for breach of probation, a conviction for an indictable offence against the person, and a pattern of offending plus an indictable current conviction.
Vancouver and Surrey :
- More numerous current charges and prior custody were the main significant factors before the law whereas after the Act, having a pattern of offending/serious current offence was the strongest predictor by far. Also significant post-law was being of Aboriginal background, but this finding may not reflect systemic discrimination as much as an indication that there are other factors affecting custody that were not included in the model.
Thus, the changes in the factors appearing to influence Halifax, Toronto/Scarborough and Vancouver/Surrey custody sentences are in keeping with the Youth Criminal Justice Act. The case characteristics predicting custody in Winnipeg and Edmonton were somewhat less consistent with the principles of the Act, although in both time periods in both cities having a pattern of offending and an indictable current offence was statistically associated with custody.
In the sample as a whole, the following changes over time that were consistent with the principles of the YCJA were observed:
- Having a pattern of offending and also serious current offence, as operationalized, was only a weak predictor of custody under the YOA but one of the two strongest predictors in the first six months after proclamation of the YCJA.
- A significant negative relationship between a current conviction for a violation of bail and custody was found under the YCJA but not under the YOA.
- Having a current probation breach conviction increased the likelihood of custody before but not after the new legislation came into effect.
- Serious violent charges – defined as indictable person offences – predicted custody in both periods.
- Having social/psychological problems increased custody usage before but not after the legislation.
The finding that older youth were treated more severely by the court under the YCJA may or may not be consistent with the new legislation depending on one’s perspective. This group is usually regarded as more accountable for their actions than younger persons, age can be considered both a “social” and a “legal” factor.
 This last variable was defined in the section that presented the multivariate findings for the factors affecting whether the case involved a finding of guilt.
 Having a past custody sentence could be assumed to be consistent with the YCJA since it is one way of operationalizing a pattern of offending.
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