Police Discretion with Young Offenders

II.  A Descriptive Profile

4.0  Use of alternative measures

4.0  Use of alternative measures

Rather than using informal action or laying (or recommending) charges, police may choose to refer to or recommend Alternative Measures. 99% of the police agencies in our sample use or recommend either pre- or post-charge alternative measures with youth-related incidents. Typically, alternative measures are considered appropriate for less serious offences and first offenders [11]. The most common alternative measures programs assigned to youth are community service, an apology, social skills improvement, writing an essay, restitution or compensation, and other activities geared toward the specific young person (Kowalski, 1999). A discussion of alternative measures involves an examination of specific procedures and legislation in each province and territory, as there is considerable jurisdictional variation. As of 1998-99, two jurisdictions (Ontario and Yukon) had exclusively post-charge programs (i.e. required that charges be laid before referral to alternative measures); three (New Brunswick, Manitoba, and Alberta) had exclusively pre-charge programs; and the rest had both modes of referral to alternative measures (Engler & Crowe, 2000). Under both modalities (pre-charge and post-charge), the police are responsible for referral, assessment and development of a plan, implementing the plan, and in some cases monitoring the youth's compliance with the plan (Hornick et al., 1996).

Alternative measures refers to programs formalized under Section 4 of the Young Offenders Act where youth are diverted from formal court proceedings at either the pre- or post-charge stage of the proceedings. In most jurisdictions, the referral agent is the Crown Attorney. However, in Manitoba and the Northwest Territories the police can be designated to refer youth to alternative measures programs (MacKillop, 1999). In New Brunswick, police officers are designated as agents for the Attorney General and in Quebec, all referrals are made by the Provincial Director (MacKillop, 1999).

Although the YOA provides for the establishment of formal diversion programs (i.e. alternative measures), this does not automatically entail that the police "cannot continue their former informal procedures in respect of the discretion to lay a charge or not in any given circumstance" (Platt, 1991: 87). However, the possibility exists that the availability of alternative measures programs (pre- or post-charge) may lead to the phenomenon known as net-widening, in which a measure which is intended to be relatively non-intrusive and to divert people away from other, more intrusive measures, is used with people who would, in its absence, have been dealt with even less intrusively (Lundman, 1993: 99). Thus, the use of pre-charge alternative measures with a youth who would, in their absence, have been dealt with by a police warning, is an example of net-widening; as is the use of post- charge alternative measures with a youth who would otherwise not have been charged. Net-widening would also have occurred if a youth's experience in alternative measures, including the process and the assigned "measure", was more intrusive than the court process and disposition which s/he would have experienced if s/he had been processed "formally". It is not always easy to define, let alone measure, "intrusiveness", so whether net-widening has occurred in any particular case is not necessarily clear. Nevertheless, in the aggregate, we see a prima facie case for net-widening if pre-charge AM has been used where otherwise an informal action would have been used, or if post-charge AM is used where otherwise pre-charge AM or informal action would have been used.

According to Platt (1991), police may prefer to refer to alternative measures because the participation in AM has evidentiary value in future encounters with the law; whereas informal action does not. Post-charge AM has additional potential for net-widening, because the fact that a charge was laid represents the application of "more law" (Black, 1976), which may increase the probability of police laying a charge in a future encounter [12]. Further net-widening may occur if, on a subsequent offence, the prior participation in pre- or post-charge alternative measures is considered as an aggravating factor in the sentencing decision (Platt, 1991). This issue is also discussed in Chapter III, Section 2.1, below.

Section 69 allows for the creation of community-based youth justice committees (groups of citizens) by provincial governments to aid in the administration of any component of the YOA. Committee membership is voluntary and may also include the police or other professionals that have an interest in youth crime and justice. These committees can be used in a variety of ways including:

According to Bala et al. (1994a: 36), "the use of these committees appears to be limited, even though they provide an excellent vehicle for communities to exercise greater authority and control in juvenile justice matters." When the Federal-Provincial-Territorial Task Force on Youth Justice was doing its research, the Northwest Territories, Newfoundland, and Alberta had begun to use Youth Justice Committees more frequently (Task Force, 1996). Saskatchewan was in the process of developing guidelines to increase their use, Ontario did not have any formally designated YJC's, and British Columbia used designated YJC's only as local advisory boards with respect to family and youth court and they did not have direct involvement in working with young offenders (Task Force, 1996: 52). Current examples of the use of these committees can also be found in Manitoba where they are used extensively and are considered particularly appropriate for use with aboriginal youth (Bala et al., 1994a; Task Force, 1996).

When we asked our interviewees whether they found alternative measures effective, two-thirds answered in the affirmative; that is, they said they found it effective "always" (4%), "usually" (52%), or "yes, to an unspecified degree" (11%). The other one-third of respondents found it effective only "occasionally" (30%) or "never" (4%). Only 50% of respondents in British Columbia answered affirmatively, compared to 58% of Ontarians, and 90% of those in the Prairies (the number of persons answering this question in Quebec, the Atlantic region, and the Territories was too small to provide reliable percentages).

4.1  Use of pre-charge alternative measures/diversion

Figure II.5 (in Section 3.1.1 above) shows that, in police services reporting to the UCR2 Survey in 2001, 6% of incidents were cleared by referral to pre-charge diversion. This underestimates the proportion of apprehended youths referred to diversion, because, for the many incidents in which more than one person was apprehended, the incident is classified according to the most serious "police disposition". Therefore, if one co-offender is charged, and others are diverted or dealt with informally, the incident is classified as "cleared by charge". Figure II.6 (above) suggests that the use of pre-charge diversion by police (in the agencies reporting to the UCR2 since 1995) has not changed appreciably since data were first collected in 1997. Figure II.7 (above) shows wide variation among police in five provinces (who reported to the UCR2 in 2001) in the use of pre-charge diversion. As expected, it is hardly used in Ontario; but it is also hardly used in the four municipal police services in Saskatchewan which report to the UCR2. More substantial proportions of incidents are cleared by diversion in New Brunswick, Quebec, and Alberta (four municipal police services).

Our respondents were asked to indicate whether pre-charge alternative measures was an option used by their police service for dealing with youth-related incidents. We quickly learned that most police officers, especially frontline officers, do not make a distinction between pre-charge diversion programs which are and are not officially authorized as Alternative Measures under Section 4 of the YOA. Indeed, when we asked them if a program to which they referred was authorized under Section 4, we were usually met with a blank look. The police officers whom we interviewed tend to use the terms "diversion program" and "alternative measures program" interchangeably, to refer to any program to which youth can be referred as an alternative to formal court processing. They are concerned with finding practical solutions to immediate problems, not with the legal niceties of Section 4 of the YOA. Thus, in what follows, we use the term "pre-charge diversion programs", in order to avoid misleading the reader who might think that they are necessarily official Alternative Measures programs.

Figure II.11 Types of pre-charge diversion programs available for referrals of youth

Figure II.11 Types of pre-charge diversion programs available for referrals of youth

Description

If the officer answered that pre-charge diversion programs were used in his or her jurisdiction, then we proceeded to explore the different types of pre-charge diversion. Internal pre-charge diversion refers to programs that are run within the police agency. An officer would fill out specific forms to refer a young person into the program. Pre-charge diversion by the John Howard Society, the Boys and Girls Club, etc. includes those police agencies that would make pre-charge referrals to an external agency which would execute the diversion agreement and monitor compliance. Pre-charge by government ministry includes those police forces and agencies that make referrals to some branch of the provincial/territorial government (e.g. Probation, Social Services). Pre-charge RJ community based refers to those agencies that make referrals to a youth justice committee that is run by a community organization and volunteers. Finally, pre-charge RJ police refers to those agencies where a police officer conducts the forum as a facilitator and organizes the conference, records the agreement, and monitors or assigns monitoring completion. Figure II.11 shows the various forms of pre-charge diversion programs to which police agencies in our sample can refer youth (percentages add to more than 100% since multiple answers were permitted).

Just under one-half (48%) of the police agencies we spoke to indicated they used some form of pre-charge diversion with youth-related incidents. Of all the various types of policing agencies, 69% of the RCMP detachments and 49% of the independent municipal police forces use some form of pre-charge diversion. The majority of rural and small town forces (66%) do not have access to pre-charge diversion, whereas 63% of metropolitan areas and 53% of suburban/exurban areas do. If rural and small-town police agencies have access to pre-charge diversion for youth it tends to be community based restorative justice.

Reports based on the Canadian Centre for Justice Statistics Alternative Measures Survey (MacKillop, 1999; Engler and Crowe, 2000) indicate that alternative measures programs for young persons in Ontario and the Yukon are exclusively post-charge. Data from the UCR2 Survey confirm that pre-charge alternative measures are used rarely in Ontario (Figure II.7, above). However, of the police services which we interviewed, 37% of those in Ontario, and 3 of the 4 police agencies in the Yukon, said that they used pre-charge alternative measures. It may be that some of these are examples of the terminological confusion discussed above. Others may have come into existence after the cited sources were compiled. In Cornwall, Ottawa, Windsor, Toronto, and Whitehorse, what we believe are authorized pre-charge alternative measures programs have been set up in cooperation with the Crown Attorney and the John Howard Society. (Of course, pre-charge diversion and alternative programs may also exist in the many jurisdictions in Ontario and the Yukon which were not included in our sample.)

Although virtually all the provinces and territories have mandated pre-charge alternative measures, comments made in the interviews suggest that this option is not exercised as often as police believe that it could be.

Only 4% of the police forces in our sample have the option of referring youth to an internal (police-run) pre-charge program. In all cases, these programs were run by independent municipal police forces. Comments made in interviews suggest that the percentage is low due to a lack of financial and human resources.

Of those police agencies in our sample, 15% make pre-charge referrals to an external organization such as John Howard Society or the Boys & Girls Club. All of these types of programs are used by independent municipal forces and tend to be in metropolitan areas. A slightly smaller proportion (9%) of pre-charge referrals are made to a government ministry. Our data suggest that these types of referrals occur only in Saskatchewan, Nova Scotia, and Prince Edward Island.

One-quarter of the police agencies we spoke to indicated they can divert youths pre-charge to a community-based restorative justice forum. Over half of the RCMP detachments (58%) in our sample made these types of pre-charge referrals, compared to only 16% of the independent municipal forces in our sample. 50% of the forces in British Columbia and 55% of those in the Territories have community based restorative justice committees. Over one-quarter of the agencies in the Prairies (29%) and the Atlantic provinces (27%) made pre-charge referrals. Further, of those police agencies which have jurisdiction over aboriginal peoples - whether on- or off-reserve - 35% had the opportunity to make referrals compared to 18% of those agencies that do not police aboriginals.

A small percentage of police agencies (12%) reported they use pre-charge diversion by running restorative justice conferences themselves. The RCMP detachments in our sample were twice as likely as other police force types to engage in police-run conferencing. One-quarter of the agencies in the Atlantic provinces (27%) and the Territories (22%) ran conferences themselves.

4.2  Process of making pre-charge referrals

The police play an integral role in the process of making pre-charge referrals. In some jurisdictions, police have the authority to refer directly to an official Alternative Measures program (e.g. Manitoba, Northwest Territories). In New Brunswick, the investigating officer refers the case to a senior police officer who is designated as an agent for the Attorney General. The senior officer then reviews the case to see if the young person is eligible for pre-charge Alternative Measures. If the case meets certain prescribed conditions it is then forwarded to the Alternative Measures Coordinator for that region who makes the final referral to an alternative measures committee.

In most jurisdictions that use pre-charge diversion, police officers are given instructions based on Department or provincial policy regarding which cases can be considered for pre-charge diversion. However, in most cases the final decision still rests with the Crown Attorney whether a young person will be diverted without a charge being laid. In Quebec, the Crown Attorney refers the case to the Provincial Director to consider whether it is appropriate for alternative measures.

In Nova Scotia the pre-charge diversion process has become much more formalized. In particular, Halifax Regional Police has instituted a checklist that must be filled out with each young offender case that is processed. This checklist ensures that officers have considered the possibility of pre-charge diversion. Officers are required to articulate the reasons why a case cannot be considered for diversion. The case is then forwarded to a senior police officer who reviews all files dealing with youths under the age of 15 to ensure that all young persons who are eligible for pre-charge diversion are indeed diverted.

Of those police agencies that provided procedural protocols and policy documents, the majority did not include a section that dealt specifically with pre-charge referrals.

4.3  Use of post-charge alternative measures

Because of the involvement of the Crown in post-charge diversion screening, we presume that when police officers talked about post-charge diversion or alternative measures, they were talking about authorized Section 4 Alternative Measures programs.

Almost all (91%) of our sample indicated that youths were diverted post-charge to alternative measures in their jurisdiction. It a ppears that jurisdictions policed by the RCMP rely less on post-charge alternative measures than jurisdictions policed by other police agencies: 73% of the RCMP detachments which we interviewed said that post-charge AM was used in their jurisdiction, compared with 93% of provincial police detachments, 98% of independent municipal forces, and 100% of First National police services. This may be because many of the RCMP detachments which we interviewed operate in the one province and three Territories where post-charge AM are less widely used: in British Columbia, only 75% of police services in our sample said post-charge AM was used in their jurisdiction, and in the Territories, it was just over half.

If the use of post-charge alternative measures does indeed encourage net-widening, because of the necessity of laying a charge in order to qualify a youth for a program (see Section 4.0, above), then it appears that considerable net-widening occurs, since a high proportion of our sample, including all types of police (independent municipal, First Nations, and provincial), said that this mode of alternative measures is used in their jurisdiction.

A case that is referred post-charge to alternative measures does not differ in the procedures and paperwork that officers complete from a case that proceeds to youth court. All forms and reports are filled out exactly as they would be for the case to proceed to court. The differences occur once the paperwork has reached the Crown Attorney.

The majority of officers indicated they did not make any notations on the Crown Brief concerning their thoughts on eligibility for post-charge alternative measures. A few stated they might tell the Crown Attorney in a private conversation that they would not object to alternative measures. However, the majority of police officers felt that, since the decision rests with the Crown, it was not their place to offer their input. The majority of officers also indicated that, in order for the young person to receive counselling or make reparations for the harm done, they had to charge the young person, since there were no pre-charge alternatives available in their jurisdiction. This finding supports the notion that post-charge alternative measures leads to net-widening.

Several officers raised strong concerns about the use of Crown discretion over alternative measures. There were many examples given of cases where, in the opinion of the officer, the young person was not remorseful and the crime had serious consequences for the victim; yet, despite the officer's communicating concerns to the Crown Attorney, the case was still diverted post-charge to alternative measures. Others expressed dismay at the volume of cases that the courts are contending with. As one officers put it, "It's the system, you've got one crown attorney, 40 cases in the docket, what are you going to do? You're not going to trial through every one of them". They suggested that cases get referred post-charge to alternative measures as the courts do not have the human resources available to try every case.

4.4  Feedback on cases referred to alternative measures

The few research studies available indicate that police perceptions of program effectiveness hinge on meaningful consequences and accurate knowledge (Caputo & Kelly, 1997; Gottfredson & Gottfredson, 1988; Task Force, 1996). Results from focus group interviews with a small sample of Canadian police officers found that the police use of community-based alternatives would be higher if the consequences which youths faced for their actions were seen as meaningful and timely (Caputo & Kelly, 1997). [13] Further, a portion of the variability in the use of alternatives to formal processing appears to be due to the lack of feedback (Hornick et al., 1996). Police officers require accurate knowledge on how other officers respond to similar situations and the consequences of their decisions (Gottfredson & Gottfredson, 1988). Police officers working in the same community will react differently towards similar youthful offending situations (Brown, 1981a), if they have inadequate knowledge of discretionary options and the most effective use of community alternatives (Hornick et al., 1996).

Most police officers appreciate the long-term benefits of making the transition from the traditional reactive style of policing to a more problem-solving proactive approach. [14] However, the police officers surveyed identified two inherent difficulties in making this transition. First, many jurisdictions contend with a high volume of paperwork and service calls. Second, the current system under the YOA is not graduated. In other words, when officers choose not to charge a youth their only options are seen as informal warnings (where they see accountability and tracking as problematic) or referrals to alternative measures (where they seldom find out what happens to the case). Specifically, internal programs created through community links (primary, secondary, or tertiary) do not provide follow-up information or the police are unable to pursue feedback due to time and resource constraints. These problems have led to frustration with the system, a lack of closure for officers, and an inability to assess the effectiveness of their decisions and use of discretion.

The literature led us to ask the officers whether they received any feedback on cases that were referred to alternative measures (pre- or post-charge). We coded their responses into four categories. None indicates that they received no feedback at all concerning cases that went to alternative measures. Informal (if requested) denotes situations where officers could inquire about the outcome of an incident that was referred to alternative measures; however, if they did not go out of their way to phone the Crown Attorney they would not receive any feedback. Occasionally but not consistently refers to police agencies which do receive some feedback, but the circumstances under which they receive feedback are not consistent. Further, in some jurisdictions police are supposed to receive consistent feedback from the organizations that run the alternative measures or from the Crown, but do not receive it consistently. Others that fell under this category were police services where the Court Liaison officer might find out about youth-related incidents that were dealt with by way of alternative measures but the investigating officer probably would not. Yes (unspecified) refers to the police agencies that indicated they do receive feedback fairly consistently but did not indicate when or to what degree.

None of the police agencies or detachments specified that they systematically or routinely receive feedback on cases referred to alternative measures.

Figure II.12 shows that just under half of the police agencies (46%) indicated they do not receive any type of feedback at all on the outcome of alternative measures referrals. Approximately 27% of those within our sample told us they receive feedback occasionally (but not consistently) or informally if requested by the officer, and the remaining 27% receive feedback to an unspecified degree.

Figure II.12 Feedback on Alternative Measures cases

Figure II.12 Feedback on Alternative Measures cases

Description

These responses differ by province/territory and type of community. Relatively high proportions of police agencies in British Columbia (67%), Ontario (59%), and Alberta (57%) say that they receive no feedback at all on alternative measures cases. In Ontario and British Columbia, this may be due to the active role of the Crown, in decision-making concerning alternative measures in Ontario, and in screening police recommendations, in British Columbia.

Police agencies in the Atlantic provinces (73%) and the Territories (75%) are much more likely to receive feedback on cases referred to alternative measures than those in the other regions (all under 35%).

Police services in rural and small town areas are more likely to receive feedback (50%) than those in metropolitan (38%) and suburban/exurban jurisdictions (20%).

We asked respondents who do receive feedback whether they found it useful. We also asked respondents who do not receive feedback whether they would find it useful. Figure II.13 shows the range of answers we received from individual police officers (only 92 of our sample of 194 officers answered this question).

Figure II.13 Is feedback on Alternative Measures useful (or would it be, if it were available)?

Figure II.13 - Is feedback on Alternative Measures useful (or would it be, if it were available)?

Description

Three-quarters (75%) of the officers who answered this question felt that feedback on cases referred to alternative measures is or would be helpful for their decision-making processes. One provincial police officer stated, "I think it would be helpful because then you'd know whether to direct others that way. That's important". An officer from Ontario summarized the usefulness of feedback as follows,

I think [] you have to have the feedback because then he'll know if it's working or not. An officer on the road who might be getting 15-20 calls a day, from the time they start they're kicked out on the road, away you go. It's very hard to do your follow-up on it, so you don't know. So a letter back makes it easier. Things that work, you'll use more. Things that you don't really know, you'll try it; well I didn't hear anything back. You'll just revert back to your old ways again.

A very large proportion of officers in Saskatchewan (100%), Quebec (92%), and New Brunswick (80%) said that they find, or would find, feedback on alternative measures cases useful for their decision-making with youths. OPP officers were more likely than others to say that they would not find feedback useful. Part of the reasoning provided was that they did not have the time and resources to analyze any feedback if they were to receive it. Officers who were unsure if feedback would be useful suggested that, since they have never received any feedback, they cannot judge its usefulness.

Overall, three-quarters of police officers who expressed an opinion said that they find or would find feedback on alternative measures cases useful, even though almost half of the officers in virtually all of the provinces do not get any.

4.5  Summary

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, they 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.