Police Discretion with Young Offenders

VI. Conclusions

1.0  The exercise of police discretion with youth

We concentrated our attention on two aspects of police decision-making with youth. The first is the decision concerning the police disposition, or clearance, of the incident: whether to lay a charge (or recommend one, in provinces where the Crown makes the final decision) or divert to a pre-charge diversion program or Alternative Measures, or to resolve the incident by informal action. The second aspect comes into play only if a charge is laid, or will be laid: the method(s) chosen to compel the appearance of the youth in court.

We found that many - perhaps most - police officers do not see these as two discrete decisions concerned strictly with the enforcement of the law, but rather view them as inseparably interrelated parts of a repertoire of responses which they use to resolve situations involving youth whom they believe to have committed offences.

Police officers appear to have two main objectives in deciding upon a disposition for an incident. One is to satisfy the requirements of traditional law enforcement: to investigate the incident, identify and apprehend the perpetrator(s), and assemble the necessary evidence if there is to be a prosecution. Their other, less explicit, objective appears to be to deliver an appropriate sanction, or "consequence", semi-independently of the Youth Court and correctional system. Officers repeatedly stressed the importance of youths' experiencing appropriate consequences for their illegal actions, and many, but by no means all, expressed scepticism about the ability of the courts and correctional system to do so; and therefore, the necessity of their dispensing street-level justice. This is not to suggest any impropriety or illegality in the actions of police, but rather to suggest that their own view of the police function in preventing, responding to, and suppressing youth crime is somewhat more expansive than the traditional view of police merely as law enforcement agents.

Particularly in metropolitan jurisdictions, police officers tended to contrast unfavourably the perceived remoteness of the Crown and Youth Court, and the cumbersome and slow nature of their proceedings, with their own proximity to the reality of street crime, their own ability to deliver swift sanctions, and their familiarity with the circumstances and needs of individual young offenders. In rural areas and small towns, officers were more likely to have closer working relationships with the Crown and court officials, and therefore more confidence in the ability of these agencies to resolve youth crime satisfactorily; and officers in rural/small town RCMP detachments in particular were more likely to have confidence in the ability of the local community and/or local diversion agencies to deal with young offenders, thus reducing their own felt need to resolve the situation entirely themselves.

On the basis of our discussions with police, it is possible to construct a list of the consequences, or sanctions, usually applied by police in dealing with a young person who they believe on reasonable grounds has committed an offence. From least to most severe, these are:

  1. Take no further action.

  2. Give an informal warning.

  3. Involve the parents.

    1. Give a formal warning; and/or

    2. Arrest, take to the police station, and release without charge.

    1. Arrest, take to the police station, and refer to pre-charge alternative measures; or

    2. Lay a charge without arrest by way of an appearance notice or summons, then recommend for post-charge alternative measures.

  4. Arrest, charge, and release on an appearance notice, a summons, or (more commonly) a PTA without conditions.

  5. Arrest, charge, and release on a PTA with conditions on an OIC Undertaking.

  6. Arrest, charge, and detain for a JIR hearing.

(The severity of options 6, 7, and 8 could be mitigated by recommending post-charge alternative measures.)

Apart from these two main objectives - law enforcement and informal sanctioning - a third objective of police action arises from what police see as their crime prevention and social welfare responsibilities - responsibilities which in some cases they would prefer not to assume, but feel that they are forced to do so by the inadequacy of existing social services. On some occasions, police will refer a youth to a diversion program, not as a sanction, but in order to address the youth's perceived needs - whether these needs are directly related to the crime, or are seen as problems with which the youth needs assistance. Furthermore, when a youth has been arrested, an officer may feel, in some circumstances, that it would be irresponsible to release the youth back "out on the street", but is unable to contact the parents, or the parents are unable, unwilling or unsuitable to take custody, and no agency can be found that will take the youth in. Circumstances which are seen as involving a risk to the youth's well-being include intoxication, involvement in prostitution, or a dangerous home environment. In these circumstances, the officer feels constrained to detain the youth; and research on bail hearings suggests that the judge may then approve continued detention, also for welfare reasons. In many jurisdictions, police said that this expedient is forced on them by the lack of suitable facilities and agencies for youth.

Data from the UCR Survey show that the proportion of apprehended youth who were charged increased under the Young Offenders Act (YOA) - from an average of 55% during 1977-1983 under the Juvenile Delinquents Act (JDA) - to an average of 64% during 1986-2000; however, the proportion charged has been slowly declining from a peak in 1991 to 59% in 2000. The main reason for this increase under the YOA in the national level of charging of apprehended youth has been the enormous increase in charging in certain provinces, notably Ontario and Saskatchewan. Under the JDA, these two provinces had high levels of police discretion with youth; that is, low proportions of apprehended youth charged - less than 40% in Ontario and less than 30% in Saskatchewan - but they now rank second and third highest in the country in the proportions of youth who are charged. Because Ontario comprises such a large part of the population of Canada, the trend in that province has had a substantial effect on the national trend. Analysis of UCR data and interviews with officers suggest that the main reason for this increase in charging under the YOA is the reliance of these two provinces on post-charge Alternative Measures. The scant data available from the UCR2 Survey suggest that police in Ontario and Saskatchewan use informal action with youth-related incidents approximately as frequently as police in other provinces, but generally they are unable to pre-charge Alternative Measures.

On the other hand, the use of police discretion with youth in two other provinces - Quebec and British Columbia - has increased substantially in the past decade, with the result that they now have the lowest recorded proportion of apprehended youth charged. The decline in charging of youth in Quebec in the past decade has been particularly pronounced. We are unsure of all the reasons for this trend, but the most plausible explanation is the unique screening systems for charging youth which are in operation in those two provinces. In Quebec, the police recommendation to charge a youth is reviewed by the Crown, in the context of an integrated youth justice and social welfare system which emphasizes both law enforcement and the welfare of apprehended young persons. In British Columbia, a police recommendation to charge a youth is reviewed by the Crown, who makes the final decision. As a result of not "owning" the decision to charge, many officers in British Columbia indicated that they try to use informal action and pre-charge diversion wherever possible, in order to ensure that the young person will receive at least some "consequence" for his or her wrongdoing.

Many forms of informal action are open to an officer who has apprehended a youth - taking no action, informal and formal warnings, involving the parents, arresting and taking the youth to the police station and then releasing him or her, and informal referral to a program (i.e. without invoking Alternative Measures). The great majority of the officers and police agencies in our sample use informal action frequently with youth. At least in the larger police services, informal action is usually recorded in the police RMS when the incident has been reported to police by a member of the public (because a record is generated when the call is received by dispatch), but recording is much more variable if the incident is discovered by an officer in the field.

Almost all of the agencies in our sample use informal warnings, and one-third use various types of formal warnings. It is also common practice to take apprehended youth home and/or involve the parents if possible. One-quarter of the sample said that one type of informal action which they use with a youth whom they have reasonable grounds to believe has committed an offence is to arrest and take him or her to the police station, then release without laying a charge.

Approximately half of the sample refer youth to pre-charge diversion programs, whether under the auspices of Alternative Measures or not. These programs are more available in cities: many smaller towns and rural areas have no such programs whatsoever. Although some officers remain sceptical about the value of pre-charge diversion and Alternative Measures, it appears that the great majority feel that they can play a useful role with some young offenders in some circumstances. In their view, diversion to a program or agency can be a much more effective way of dealing with a youth's perceived criminogenic problem than referring him or her to Youth Court; also, some see referral to Alternative Measures as a useful intermediate sanction, representing a consequence for the youth which is more severe than informal action, but less harsh than laying a charge.

By far the greatest source of dissatisfaction with AM programs which was expressed by interviewees is their unavailability. In many communities, the range of programs is inadequate; in many others, there are no programs at all.

A second deficiency of alternative measures which many officers identified is the lack of mechanisms to provide them with feedback on the outcomes of their recommendations - whether they were accepted, and whether the resulting placement was effective. In the absence of information, they can only speculate about the appropriateness and effectiveness of their past and future recommendations.

Although many officers were interested in discussing pre-charge diversion with us, and many had definite opinions on this subject, very few showed any such interest in discussing post-charge AM. Apparently, this is largely foreign territory for police officers: many said that this is entirely a matter for the Crown, and they did not offer input to the Crown on a decision which is entirely out of their hands.

In summary, pre-charge diversion and alternative measures seem to have been accepted by the great majority of police officers and police services as a very useful method of dealing with certain kinds of offending youth in certain circumstances. However, according to police whom we interviewed, the available facilities and programs are woefully inadequate.

Although the recorded rate of youth crime in Canada has not changed substantially in the past 20 years, there is one category of youth crime which has increased exponentially: offences against the administration of justice. Almost all of these are violations of bail or probation conditions and failures to appear for court. The recorded rate of bail condition violations and failures to appear by youth in 2000 was approximately 20 times as high as in 1983. In the year 2000, offences against the administration of justice accounted for 16% of all youth charged in Canada. In fiscal 1999/2000, administrative offences accounted for 27% of all Youth Court cases, and 40% of all custodial dispositions. According to UCR statistics, police exercise less discretion with these offences than with any other offence except murder. When we asked officers why so little discretion is used with these offences, which are victimless and cause no harm except for expense and inconvenience to the justice system, they explained that many such cases are referred to them by other system agents - mainly the Youth Court or probation officers - and they feel they have no alternative but to comply with what they interpret as an implicit or explicit request to lay a charge. When police themselves discover a breach, they may well overlook it, unless there are aggravating circumstances. Often, for example, the breach is just the tip of the iceberg - the youth has a substantial record of prior offences, including prior breaches, and is on bail in multiple current cases before the court, and/or on probation for past offences. None of the officers whom we interviewed seemed to think that they could overlook a failure to appear: apparently (although this was by no means entirely clear to us), notification by the court of the failure to appear and of the subsequent issuance of a bench warrant is understood as a request for the laying of a charge. The epidemic of administration of justice offences in the youth justice system appears to be more a result of the way in which the Youth Court and probation systems define and enforce their orders, than of police decision-making. The one way in which police do seem to be contributing to this epidemic is in their decisions concerning conditions of release from custody (discussed below). In some circumstances, police will impose, or seek to have imposed, intrusive conditions which may inadvertently "set the youth up for failure". This is particularly a concern with intensive supervision programs for high-risk youth, such as SHOP and SHOCAP, which rely on bail (and probation) conditions such as a curfew to give police the opportunity to monitor the lifestyle of the youth.

Possible methods of compelling the appearance of a youth (or adult) in court include: the summons and appearance notice, which can be used either instead of arrest, or as a method of release after arrest; and release on a Promise to Appear (PTA), with or without an Undertaking involving conditions. Theoretically, police can also release a young person on a Recognizance, but this is apparently never done.

The use of the summons or appearance notice without arrest would seem to be particularly desirable with young offenders, because of the non-intrusiveness of these measures. However, they are in fact rarely used. Several reasons were offered by police. The main reason appears to be that when an officer contemplates laying a charge or referring to pre-charge Alternative Measures, s/he needs to provide enough evidence to the Crown that a prosecution would be feasible (whether or not a prosecution actually takes place). This would typically involve establishing identity, taking a statement, possibly fingerprinting, possibly notifying the parents, and completion of one or more forms, all of which can be done much more satisfactorily in a police station than in the street or police car. Another reason is that arresting the youth and taking him or her to the police station prior to laying a charge are seen by some officers as ways of impressing the seriousness of the situation upon the youth, who might not take a summons or appearance notice as seriously. Related to this is the perceived necessity, in some circumstances, of establishing control of the situation, and of separating the youth from his or her peers, in order to elicit cooperation. A final reason is the difficulty, in some circumstances and jurisdictions, of serving a summons.

Following arrest and temporary custody, most officers prefer the Promise to Appear to the summons or appearance notice as a method of release. The main reason is that the PTA can be accompanied by an Undertaking which specifies conditions of release. Many officers seem to attach considerable significance to the conditions contained in an undertaking. They see these conditions as relatively precise, immediate, enforceable constraints on the young person's future behaviour, and immediate, concrete consequences (sanctions) for the youth's criminal act. These are contrasted with what they see as the remote, delayed, unpredictable, and perhaps inappropriate constraints and sanctions which may (or may not) be imposed eventually by the Youth Court and correctional system.

The final, and by far the most intrusive, option for compelling appearance is detention for a Judicial Interim Release (JIR) hearing. The reasons given by police officers for detaining youth fall into three broad categories. The first includes reasons related to law enforcement, narrowly defined, such as establishing identity, protecting evidence, ensuring attendance at court of a youth whom police have reason to believe would not otherwise attend, and preventing a repetition of the offence. The second group of reasons could be summarized as "detention for the good of the youth". These include detaining youth who are intoxicated, who do not have a safe or secure home to be released to, and whom social services will not or cannot accommodate, or who are prostitutes. In these cases, police find themselves acting, not as law enforcement officials, but as staff of the "only 24-hour emergency service in town". The third type of rationale treats detention as another kind of police disposition - that is, as another in the repertoire of measures which police can take in order to administer a sanction or "meaningful consequence" for a youth's illegal behaviour. This view seems to underlie some officers' statements that they will detain a repeat offender or a youth with multiple breaches, or a youth with a "bad attitude", or a youth in a gang-related incident. A variant of this is the use of detention and the JIR hearing to get judicial bail conditions, in order to impose immediate control on the young person, and, in some cases, to facilitate the work of monitoring programs for high-risk youth, such as SHOP and SHOCAP.