Understanding Cases of Failure to Comply with A Disposition


Section I: One-Year Snapshot

Part 1: Introduction

Under the YOA, and now the YCJA, failure to comply with a disposition is an offence that we know little about. From easily available youth court statistics, we know that the rate of bringing youths in to court for this office has increased slightly over the past ten years (1991-2001). We also know that the rate of imposing custody for this offence has increased over the past decade. The increased rate of imposing custody appears to be the result of slight increases at every stage of the youth court process: bringing more cases into court, finding larger proportions guilty, and sentencing larger proportions of guilty cases to custody. However, beyond this we know almost nothing about this offence.

This report examines in detail the nature of the cases involving failing to comply with a disposition under the Young Offenders Act (YOA). Section I uses one year of youth court data and investigates the case characteristics (e.g. other charges within the case) as these cases enter youth court. Section II uses longitudinal youth court data to investigate the criminal history of cases that resulted in a failure to comply conviction.

For this first section, all charges for a particular individual (in a particular court location and in a particular province) were aggregated on the first date of appearance in youth court in 2000/2001[2]. Given this definition, there were 22,867 cases that appeared in youth court with failure to comply charge or charges. First, a description of these cases as they enter youth court will be provided followed by a description of the charges that were ultimately “found guilty” within these cases. Finally, the types of sentences [3] given to these cases will be explored.

Part 2: Description of cases involving failure to comply charges

It has sometimes been suggested that failure to comply cases are cases that typically involve other (criminal) charges and thus it is an arbitrary decision to find the youth guilty of failure to comply rather than another charge that was part of the case (e.g., a theft or an assault). It appears, however, that this is not the case. As cases entered youth court 37.6% of the cases had only a single charge of failure to comply (Table 1). An additional 17.5% had multiple charges of failure to comply and another 8.3% had other administrative offences in addition to the failure to comply charge or charges (Table 1). Only 36.6% of cases with a failure to comply charge (or charges) had another criminal [4] offence (or offences) in the case (Table 1). As mentioned earlier, there may be additional charges added after the date of first appearance. However, this issue is somewhat irrelevant when examining this specific issue of how these FTC charges first enter court. As mentioned above, one theory was that youths were entering court with both FTC charges and criminal charges. So, for example, a youth might be charged with shoplifting and with failing to comply with the condition of not being in that particular store. Thus, both of those charges would enter youth court on the same day – as they were both part of the same incident. This, however, appears not to be the case. Rather many of these FTC charges are entering youth court without any other types of charges in the case.

Table 1: Cases involving Failure to Comply charges
Single failure to comply charge case 37.6%
(8,600)
Multiple failure to comply charges 17.5%
(4,005)
Other administrative offences / criminal code charges 8.3%
(1,901)
Criminal offence with failure to comply charge(s) 36.6%
(8,361)
Total 100%
(22,867)

Looking at the 36.6% of the cases that had other criminal charges (8,361 cases), the majority are relatively minor offences [5]. Roughly 16% of the cases were minor assaults, another 14.6% consisted of “other violence/weapons” and over a third (36.3%) of the cases involved possession of stolen property/theft under (Table 2). The majority (70%) of the criminal offences then, were property or drug offences.

Table 2: Type of criminal charges with failure to comply cases
Minor assault 15.5%
(1,295)
Other violence/weapons 14.6%
(1,217)
Possession of stolen property/ theft under 36.3%
(3,036)
Other property 27.2%
(2,276)
Drugs 6.4%
(537)
Total 100%
(8,361)

Part 3: Case characteristics and finding failure to comply charges guilty

Thus far, these cases have been described by the types of charges present at the beginning of the youth court process. However, not all of the charges were “found guilty”. The “not guilty” category includes some combination of not guilty, stayed, dismissed, withdrawn, etc. Roughly two thirds of the cases were convicted of at least one count of failing to comply with a disposition. Specifically, of the 22,867 cases that entered youth court with at least one failure to comply charge, 15,790 (69.1%) cases were ultimately convicted. Thus, 30.9% (7,077 cases) were not convicted, in the end, of failing to comply with a disposition. Information on convictions for the other charges was not obtained – thus, all charges other than FTC may, or may not, have ultimately been found guilty.

In single charge failure to comply cases, 70.5% of the cases were found guilty (Table 3). In cases of multiple failure to comply charges, a slightly larger proportion of cases (84.6%) had at least one conviction for failing to comply [6] (Table 3). When there were other administrative offences or criminal offences in the case, there was less likely to be a conviction for failing to comply. For example, only 58.4% of cases with other administrative offences had a conviction for failing to comply. Of the cases with criminal offence(s), 62.5% of the cases had a failing to comply (FTC) conviction. It may be that the failure to comply charge appears trivial in comparison to a more serious (criminal) charge, thus there is less likely to be a conviction for FTC when other charges are present within the case. Information was not obtained on whether or not the other charges were found guilty so it is unclear how these cases look at the end, in terms of the types of convictions present.

Table 3: Percent of failure to comply charges found guilty as a function of type of case
  Finding for failure to comply charge Total
Not guilty* Guilty
Single FTC charge 29.5%
(2,538)
70.5%
(6,062)
100%
(8,600)
Multiple failure to comply charges 15.4%
(616)
84.6%
(3,389)
100.0%
(4,005)
Other administrative offences / criminal code charges 41.6%
(790)
58.4%
(1,111)
100.0%
(1901)
Criminal offence with FTC charge 37.5%
(3,133)
62.5%
(5,228)
100%
(8,361)
Total 30.9%
(7,077)
69.1%
(15,790)
100%
(22,867)

*Not guilty = combination of not guilty, stayed, dismissed, withdrawn, etc.

Looking at only those cases with a criminal offence (N=8,361), it appears that the more minor the crime, the more likely there is to be a conviction for FTC. For example, of cases that had violence offences in addition to a FTC charge (or charges), anywhere from 56% to 58.6% of the cases were ultimately convicted of FTC (Table 4). In contrast, of the cases that had property offence, anywhere from 62.8% to 66.3% of cases received a conviction for FTC (Table 4). ). It is not clear why cases with less serious offences are more likely to receive convictions on the FTC charge (or charges). It could be the nature of the cases (more serious offences compared to less serious offences) are different. Perhaps the less serious cases have more failure to comply charges – thus making it more likely that there will be at least one conviction for FTC. Unfortunately the exact number of FTC charges for each case was not obtained so this issue can not be explored. Alternatively (or additionally) it may be that, as suggested above, the failure to comply charge appears trivial in comparison to a more serious (criminal) charge. Again, however, since no information on what happened to the other charges was obtained, one does not know how these cases look at the end of the process.

Table 4: Finding failure to comply charges guilty by type of criminal offence in case
  Finding for failure to comply charge Total
Not guilty* Guilty
Minor assault 41.4%
(536)
58.6%
(759)
100.0%
(1,295)
Other violence /
weapons
44.0%
(535)
56.0%
(682)
100.0%
(1,217)
Possession of
stolen property
/ theft under
33.7%
(1,023)
66.3%
(2,013)
100.0%
(3,036)
Other property 37.2%
(847)
62.8%
(1,429)
100.0%
(2,276)
Drugs 35.8%
(192)
64.2%
(345)
100.0%
(537)
Total 37.5%
(3,133)
62.5%
(5,228)
100.0%
(8,361)

*Not guilty = combination of not guilty, stayed, dismissed, withdrawn, etc.

Part 4: Case characteristics and most serious sentence for the failure to comply Conviction

This section explores the most serious disposition given for the failure to comply conviction. Thus, it examines only those 15,790 cases (69.1% of the sample) where there was a finding of guilt on at least one of the failure to comply charges. When there are multiple convictions for failing to comply, the most serious sentence was chosen. Again, however, any charges associated with the case that are not introduced on the same day as the start date are excluded. Thus, the sentences imposed could be influenced by additional, and sometimes more serious charges/convictions, that were introduced at a later date.

Table 5: Most serious disposition given for the failure to comply conviction
  Percent
(number of cases)
Cumulative Percent
Secure custody 25.0%
(3,946)
25.0%
Open custody 28.3%
(4,462)
53.2%
Probation 29.5%
(4,661)
82.8%
Fine/ CSO/ Other 17.2%
(2,721)
100.0%
Total 100%
(15,790)
-------

The case characteristics appeared to affect the sentence given to the failure to comply conviction. Single FTC conviction cases received the least punitive sentence (Table 6). However, 44.1% of cases with a single conviction for FTC received custody. Given that the failure to comply “offence” involves breaching a condition (curfew, non-association order, reporting to youth worker, etc) as opposed to committing a criminal offence, sanctioning with a custodial sentence may appear somewhat punitive. In cases of multiple failure to comply convictions, a slightly larger proportion of cases (53.7%) received a custodial sanction (Table 6).

When examining the sanctions for the failure to comply convictions in cases with administration of justice offences or other criminal offences, it is important to understand that the sentence for the failure to comply conviction may be concurrent with the sentence(s) for the other convictions(s) in the case. So, for example, imagine a case with a theft under conviction and a failure to comply conviction. In this data set it may be indicated that the failure to comply received a custodial sanction. This does necessarily reflect a “unique” sanction for the failure to comply. It may be that the custodial sentence was for both the theft under and the failure to comply (to be served concurrently). Alternatively, it may be that the custodial sanction is only for the failure to comply conviction and there is another custodial sanction or different type of sanction given for the criminal offence. Thus, when examining the most serious sentence for the failure to comply conviction, in cases with other criminal offences, one should interpret this as the minimum sentence given – there may be an additional sentence or it may be the entire sentence for all charges. In addition, as mentioned throughout, the sentence could also reflect additional charges that were added after the date of first appearance. It would likely be safe to assume, however, that at least a third of the cases containing only FTC convictions are receiving custody. See Appendix A: Table A1 for a breakdown of open/secure custody.

Table 6: Most serious disposition given for the failure to comply conviction by type of case
  Type of Case Total
Single FTC
conviction
Multiple FTC
convictions
Other
administration of justice/
criminal code charges
Other criminal
offence with
FTC conviction(s)
Custody 44.1%
(2,672)
53.7%
(1,821)
64.2%
(713)
62.1%
(3202)
53.2%
(8,408)
Probation 29.4%
(1,784)
26.8%
(908)
24.2%
(269)
32.5%
(1,700)
29.5%
(4,661)
Fine/
CSO/
other
26.5%
(1,606)
19.5%
(660)
11.6%
(129)
6.2%
(326)
17.2%
(2,721)
Total 100.0%
(6,062)
100.0%
(3,389)
100.0%
(1,111)
100%
(5,228)
100.0%
(15,790)

Looking at those 5,228 cases where there was a FTC conviction and at least one other criminal offence in the case, one can see a relatively high use of custody across all offence types. Table 7 shows that in cases where the most serious criminal offence is a minor assault, 59.3% of cases received a custodial sentence for the failure to comply conviction. Looking at the more minor (non-violent) offences, (possession of stolen property and theft under) 60.8% of the cases received a custodial sanction for the failure to comply conviction. Again, this is the minimum sentence given – the criminal offence may or may not have received a different sentence to be served in addition to the most serious sentence given to the guilty failure to comply conviction. And again, there could have been additional charges added on after the first appearance. (see Appendix A: Table A2 for a breakdown of open/secure custody).

Table 7: Most serious disposition given for the failure to comply conviction by type of criminal offence in case
  Type of Offence in Cases with Other Criminal Charges Total
Minor
assault
Other violence
/ weapons
Possession
of stolen
property /
theft under
Other
property
Drugs
Custody 59.3%
(450)
65.2%
(445)
60.8%
(1,223)
63.5%
(907)
51.3%
(177)
61.2%
(3,202)
Probation 34.7%
(263)
29.5%
(201)
32.5%
(654)
31.5%
(450)
38.3%
(132)
32.5%
(1,700)
Fine
/CSO
/other
6.1%
(46)
5.3%
(36)
6.8%
(136)
5.0%
(72)
10.4%
(36)
6.2%
(326)
Total 100.0%
(759)
100.0%
(682)
100.0%
(2,013)
100.0%
(1,429)
100.0%
(345)
100.0%
(5,228)

If these sentencing patterns hold under the Youth Criminal Justice Act (YCJA), then the relatively high use of custody for these minor offences may be problematic for a couple of reasons. First, this high use of custody for relatively minor cases may conflict with the intent of the new youth justice legislation. Sections 38 and 39 of the YCJA outline, fairly explicitly, what judges should be focusing on when sentencing and when to use custody. In section 38 judges are then given a list of approximately seven principles to follow when sentencing – for example that the punishment must be proportionate to the seriousness of the offence and the degree of responsibility of the young person or that the sentence must be the least restrictive one available ( YCJA Section 38(2)). Section 39 of the YCJA contains further “hurdles” for cases to get into custody. Custody can only be imposed if one or more of four conditions are met:

  • it is a violent offence,
  • the youth has previously failed to comply with non-custodial sentences,
  • the youth has been found guilty of an offence where an adult could serve over two years and there is a history of findings of guilt, or
  • “in exceptional cases where the young person has committed an … offence, such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles [of sentencing]” (Section 39(1)).

While additional charges may have been added to some of the cases, there still appears to be a relative high use of custody for the more minor offences. For example, roughly 44% of cases with only a single conviction of FTC received a custodial sentence. While some of those cases may have had additional charges added, it would likely be safe to assume somewhere around 30% are receiving custody. It may be that those cases had a lengthy criminal history – thus making the use of custody permissible. However, if this was the first time those cases came into youth court for FTC, then the use of custody would likely be prohibited under the YCJA as the presumption in Section 39 appears to be that custody should only be used if there are multiple (two or more) failed community-based sentences in the past. Thus, it would be valuable to explore whether this sentencing pattern has continued under the YCJA.

The high use of custody may be problematic for another reason. Research has shown that the previous sentence affects sentences that follow. Matarazzo, Carrington and Hiscott (2002) found that Canadian youth court judges appear to be more influenced by the previous sentence that a young person received than by his/her past criminal behaviour. That is, youths tend to be handed down either the same type of sentence that they received the previous time or a more severe sanction, independent of the present crime that they committed. In other words, it is not just what the youth did, or who the youth was, but what the judge did the previous time that makes the difference. This means that the high use of custody for these cases makes it very likely that if these youths ever return to youth court they will likely receive another custodial sentence no matter what they come back into youth court for. Again, this may cause a problem for achieving proportionality in sentencing.

Part 5: Summary

Section I provided a snapshot of cases coming into youth court with a failure to comply charge (or charges) under the Young Offenders Act. It appears that many of these cases are single or multiple charges of failure to comply – not cases involving other criminal offences. The more charges of failing to comply, the more likely that there will be at least one conviction for FTC. Custody appeared to be used in a relatively high proportion of cases – 44% of cases with a single failure to comply conviction received custody. In cases with multiple failure to comply convictions (but no criminal offences) over half received custody. Custody was used in higher proportions in cases where there were other administration of justice offences or criminal offences. If this sentencing pattern still exists under the YCJA, then this high use of custody may be seen as conflicting with the intent of the YCJA and will undoubtedly affect any sentences that follow if the youth ever returns to youth court.


  • [2] Using the date of first appearance in court is not the usual way CCJS releases data. Typically, a case is based on the date of disposition. However, given that the interest in this first section is on following cases through the youth court process, the date of first appearance was the best way to define a case. This means that these data cannot be compared to other data released by CCJS.
  • [3] The term sentences will predominantly be used instead of “dispositions” since that is the terminology used in the YCJA.
  • [4] For the purpose of this report, a “criminal” offence includes only a violence, property and drug offence. Administration of Justice/Criminal Code offences are not included in this category.
  • [5] Where there were two or more criminal charges against the youth in the case, the most serious offence was chosen. Violence was seen as most serious, followed by property, followed by drug offences.
  • [6] It was not possible to easily obtain findings of guilty on every failure to comply charge within every case. Thus, in cases where there were multiple failure to comply charges, a “guilty finding” or “conviction” means that at least one of the failure to comply charges was found guilty.
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