Understanding Cases of Failure to Comply with A Disposition

Section III: Policy Recommendations

Proportionality

Within the cases examined here, judges appeared to use proportionality when sentencing under the YOA. Generally, the more convictions for FTC or the more substantive offences within the case, the more likely custody will be used (see, for example, Tables 13 or 14). This sentencing pattern is consistent with Section 38 of the YCJA which says that the sentence should reflect the seriousness of the offence and the degree of responsibility of the offender.

However, when comparing FTC cases to other types of cases, there may be an argument that proportionality is no longer achieved. Cases with multiple FTC convictions tended to receive more severe sentences than cases with other types of convictions (see, for example, Table 13). In addition, there was clear effect of having a previous conviction for an administrative offence. Those who had a previous conviction for an administrative offence (as the most serious conviction in the case) were significantly more likely to receive a harsher sentence than any other type of previous conviction.

As another illustration, data from this report suggested that 29.2% of cases with only one conviction for FTC received custody. By comparison, data published from CCJS shows that 30.2% of cases with one robbery conviction received custody; 17.1% of cases with one conviction for a level two or three assault received custody; 10.8% of cases with one conviction for a minor assault received custody; and 16.3% of cases with one conviction for a break and enter received custody (Table 28). When looking at cases with multiple convictions, a larger proportion of cases receive custody – with failure to comply cases once again using custody more than most other types of cases. Only in robbery cases was custody used more often – 56.4% of robbery cases received custody compared to 52.5% of failure to comply cases (Table 28). The fact that FTC cases (which typically involve violating an order like a curfew) receive custody in larger proportions than serious assaults is surprising and, if this pattern exists under the YCJA, it should make one question whether this reflects “proportionality” as described under the new law.

Table 28 : Percent of cases that received custody (Selected Cases*)
  Single Conviction case – percent that received custody Multiple Convictions within the Case* – percent that received custody
Failure to comply with a disposition 29.2% 49.8%
Robbery 30.2% 56.4%
Level two or three assault 17.1% 45.5%
Minor assault 10.8% 34.1%
Break and enter 16.3% 44.1%

*Data for robbery, level two and three assaults, minor assaults, and break and enter were obtained from CCJS youth court data tables. When there are multiple convictions within a case, CCJS chooses the conviction that resulted in the most serious sentence (Youth Court Survey, Canadian Centre for Justice Statistics. (2003). Unpublished data. Tables 3.03 and 3.04). The failure to comply data were obtained from this report – as explained earlier, when there were multiple convictions within a case, the most serious conviction was chosen.

The above findings, however, do not control for previous convictions. It may be that the FTC cases typically have longer criminal records then other types of cases. Thus, while the FTC may have a less serious current offence compared to other cases (e.g. a violation of a curfew for FTC versus an aggravated assault), the FTC cases may receive harsher sentences than other violence offences due to the criminal record. However, the results from the multiple regression suggested that even controlling for other case characteristics, there is a significant impact of having a previous administrative offence. Moreover, in ia proportionality model like that in the YCJA, there is no suggestion that the criminal record should be more important than the nature of the current offence before the court. Thus, if this sentencing pattern holds under the YCJA it may be beneficial to provide education on Section 38 for those working within the YCJA. Further exploration around the role of the nature of the offence and the criminal history in driving the current sentence under the YCJA appears necessary.

Results from the regression analysis (Table 18) suggested that the major predictor of the current sentence for the FTC conviction was the previous disposition. This is consistent with other findings ( Matarazzo et al, 2002 ). Clearly the YCJA does not suggest that the previous disposition should be driving the current disposition. There should perhaps be greater education for those working in the field on the lasting effect a disposition has on a youth.

Restrictions on Custody

There is another question about the use of custody with these cases and Section 39 of the YCJA. Section 39 states that c ustody 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 finding s 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)).

The second provision – that the youth has previously failed to comply with non-custodial sentences suggests that there needs to be are least two failed sentences in the past. Looking at cases with only one previous case before the current FTC conviction (35% of the sample, N=3180), one sees that 33.6% of them received a custodial sentence (Table 29). Once again, those with two or more FTC convictions were more likely to receive custody than cases with one FTC conviction and one other type of conviction (38.3% and 26.8% respectively). Under the YCJA it could be argued that, depending on the type of other convictions present, the use of custody for these cases is now prohibited. Table 29 shows that there are 360 cases (11%) that only had FTC convictions yet received custody. Certainly there could be a strong argument for the prohibition of custody for those “FTC only” cases. Thus, it would be valuable to explore whether this sentencing trend still exists under the YCJA.

Table 29: Type of Sentence by Convictions ( Cases that had o nly one previous case before current FTC case)
  Most Serious Conviction in Case (Cases that had o nly one previous
case before current FTC case)
Total
  1 FTC 2+ FTC 1 FTC and 1 non-FTC 1+ FTC and 2+ non-FTC 2+FTC and 1+ non-FTC
Custody 19.1% 38.8% 26.8% 49.9% 58.4% 33.6%
Probation 43.5% 37.0% 58.9% 45.8% 37.2% 45.4%
Fine/CSO/Other 37.4% 24.2% 14.3% 4.3% 4.4% 21.0%
Total 100%
(1190)
100%
(343)
100%
(683)
100%
(461)
100%
(503)
100%
(3180)

Clearly then, it would be wise to explore whether or not these various sentencing patterns still exist under the YCJA. Generally, however, one way in which to reduce the number of cases with FTC charges might be to have a review of the sentence first before charging the youth with FTC. A forced review might help to identify if there are conditions that are problematic for the youth. Once in youth court, there should be education and discussion about the various sentencing provisions of the YJCA (Sections 38 and 39 in particular). Focusing in particular on what should drive the current disposition and how to achieve “proportionality”. There should also be discussion around how serious people see these FTC cases as they are currently relying heavily on custodial sanctions – the most expensive of our limited resources.

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