Crown Decision-Making Under the Youth Criminal Justice Act

Introduction

The discretionary process that produces a prosecutorial decision is often shrouded in mystery. It is indeed ‘a practically invisible, unexamined and often ignored phenomenon'.[1]

The purpose of this research is to shed light on the factors associated with Crown decision-making in youth court cases. This multi-site project, which was conducted in two courts in Saskatchewan and three courts in British Columbia, is designed to contribute to our understanding of the exercise of prosecutorial discretion. Crown decisions not only affect the volume of cases dealt with by the youth courts and hence court workload but more importantly, affect the nature and degree of intervention experienced by young persons who come into contact with the justice system. This study was undertaken to describe the process taken by prosecutors to come to their decisions, the sources of their information, and the reasons for their decisions. Four main decision points are examined: charge approval in British Columbia, Crown prosecutors' referrals to Extrajudicial Sanctions (EJS), the decision to release the young person from pre-trial detention and the Crown's submission to sentence.

1. Research Questions

The following research questions were identified by the Department of Justice Canada.

  1. What are the factors that are associated with Crown decisions to charge or to take no further action in British Columbia?
  2. What are the factors that encourage Crown prosecutors to refer a youth to Extrajudicial Sanctions?
  3. What factors are associated with the Crown decision to release young persons from pre-trial detention on consent?
  4. At sentencing, what are the factors that encourage the Crown to recommend that the young person be sentenced to custody and supervision?

2. Methodology

This comparative study was done with the permission of senior officials in each jurisdiction who selected two youth courts in Saskatchewan and three in British Columbia for participation in the study. These provinces differ in a variety of ways, including their standards for prosecution, pre-charge screening practices, availability of programs for young offenders and custody rates.

In the summer of 2003, a field researcher spent four weeks in each province, undertaking interviews, collecting information on a sample of Crown decisions, observation and file data collection. The field worker had a unique opportunity to witness the behind the scenes discussions and negotiations between the Crown and other court actors.

Structured interviews were undertaken with seven youth prosecutors and eleven defence counsel, both counsel in private practice and those employed by the provincial legal aid plan and social services. On average, the semi-structured interviews lasted one and half hours. The interviews addressed court organization and workload, pre-trial detention and sentencing practices, programs in the community and in the correctional system, and community pressures on the youth court.

The bulk of the data collection involved collecting information on a sample of cases by means of interviewing Crown prosecutors. This component on the “how's and “why's” of Crown's decisions about specific cases was prospective in nature. The field worker sat with Crowns and asked for their reasoning for making their decisions at the same time as or soon after the decisions were made.

A checklist for administration to Crowns was developed, containing the social and legal characteristics of the case and the information available to the Crown at the time of decision-making. All case-specific comments by Crown prosecutors and other actors were recorded by the field worker on the form in an open-ended format.

At the outset of the project, we realized the necessity of developing good rapport with court personnel, especially the Crown prosecutors. The field worker attempted to obtain the cooperation and trust of Crowns in an impersonal, non-threatening manner. Crowns were assured of anonymity. The burden on the time of Crowns was minimized by asking questions at free moments. Courtroom observation was also conducted as many of the Crowns' interactions with others occurred in the courtroom immediately before court opens and at recesses. Most verbal exchanges are not found in paper files. Cases identified through observation were then followed up in Crown files in order to quantify socio-demographic, prior record, and offence characteristics.

In addition, informal conversations were held with a variety of court actors, including bail program staff, social services personnel, youth workers[2] and court administrative staff. Finally, Crown policy manuals were reviewed to determine the official standards, if any, for prosecution and EJS, bail and sentencing policies.

A search of the literature on the decisions made by prosecutors was undertaken. The literature review examined sources from Canada, United States, the United Kingdom and Australia. Overall, very little research has been done on the topic.

3. The Observation Sample

The total number of Crown decisions was 142:

  • 28 charge approvals (only in British Columbia),
  • 19 referrals to Extrajudicial Sanctions (EJS),
  • 49 bail decisions, and
  • 46 submissions to sentence.

Originally, we anticipated that information on 20 decisions per day could be collected, making a total of about 800 cases for eight weeks of data collection in high flow courts. The following factors explain the shortfall between expectations and reality.

  1. The Youth Criminal Justice Act had been in effect for only a few months. As had occurred after the Young Offenders Act was proclaimed, the number of youth matters coming to court had dropped precipitously. Also, data collection was done in the summer, always a slower time for the courts. The sample was limited by the small number of cases being dealt with by the courts.
  2. Most study courts were by no means high flow. At the time of the proposal, there had been no decision on the selection of court locations.
  3. Two jurisdictions agreed to participate in the study and in both cases provincial officials strongly recommended that more than one court be sampled. Having to deal with Crown prosecutors and others at five youth courts meant that the field worker was required to spend more time to become familiar with the court and its procedures and personnel – as well as developing rapport.
  4. We greatly underestimated the amount of time required to interact with Crowns,[3] defence and other court personnel as well as to conduct interviews and collect file data. It was impossible for the field worker to “shadow” more than one Crown prosecutor per day.

4. Analysis

The expectation in the proposal for the project was that both quantitative and qualitative analysis could be done. The small sample size has meant that a good part of the analysis must be qualitative. The value of qualitative data on the topic of Crown decisions should not be underestimated. Because the process of prosecutorial decision-making is not well understood, qualitative techniques are appropriate because the approach gives the researcher and participants the opportunity to raise issues that were not anticipated. Qualitative research is “best for exploratory and descriptive analyses which stress the importance of context, setting, and subjects' frames of reference” (Marshall & Rossman, 1994). This project is very much a "first step" in studying Crown discretion.

A number of the “harder” data elements were entered into SPSS, a software package for the social sciences. Three Crown decisions were analysed using regression: the differences between the Extrajudicial Sanctions referrals and the rest of the sample; the factors affecting the Crown decision to release a youth from detention; and the case characteristics associated with the decision to recommend a custody and supervision sentence. Because the sample sizes are small, few variables could be used as independent or explanatory factors. To a certain extent, this problem was resolved by undertaking preliminary multivariate analyses to exclude variables that were unrelated to the dependent variable when other factors were controlled.

5. Methodological Issues

Because of the timing of this research – soon after the proclamation of the Youth Criminal Justice Act – many prosecutors were dubious about the actual intent of the study. Although the field worker emphasized that the purpose of the research was to investigate the process of Crown decision-making, many were concerned that the research was an audit to determine whether prosecutors were adhering to the new Act.

Observational techniques are perhaps the most privacy-threatening data collection technique for staff... Staff fear that the data may be included in their performance evaluations and may have effects on their careers (Frechtling & Westat, 1997: 4 (Chapter 3)).

The field worker spent considerable time in negotiating with and re-directing respondents towards the goal of the study. Despite her best efforts prosecutors in two of the five youth courts were reluctant to participate in the study. One Crown said that she and her colleagues participated only because they had been “ordered” to do so. In another province, a prosecutor appeared to be defending her colleagues.

We all do youth court the same. We all exercise discretion in a very careful way….very mindful of the Act. We always would use the Act as a guidepost. The judges are very vigilant here, we have a very active defence bar. There's a lot of checks and balances in the defence bar in terms of their saying ‘well, what about this part'. At the end of the day we all want to do the right thing. We all live in the community and we all want to make it safe.

A critical issue is whether the information on decision-making provided by the Crown respondents was reliable and valid. This question is not easily resolvable but it is possible that some prosecutors, particularly those who were hesitant about participating, may not have been entirely open in their responses to questions on the reasons for their decisions.

The cases included in the prospective observational sample that entered the youth courts in July and August 2003 may have been atypical because of the decrease in police charges that was occurring at that time.

Finally, the generalizability of the findings to the youth courts involved or to the jurisdiction as a whole is not known.


  • [1] Cited by Ian Dobinson (2001).
  • [2] In this report, the terms youth worker and probation officer are used interchangeably.
  • [3] In particular, time was required to assure the Crowns of their anonymity and the purposes and importance of the research.

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