Police Discretion with Young Offenders
II. A Descriptive Profile
- 1.0 Detection of youth crime
- 1.1 Clearing the incident
- 1.2 Proportion of apprehended young persons who are charged
1.0 Detection of youth crime
Detection of crime can occur in one of two modes. Proactive policing involves police-initiated activities by either an individual officer or the police organization (e.g., traffic tickets, crime prevention initiatives). Proactive mobilization occurs when officers make spontaneous decisions to stop citizens for further investigation, or reflects administrative and supervisory decisions to focus on certain groups of people who are believed to be crime-prone (Ericson, 1982) [2]. Reactive policing involves a police response to a specific request by a citizen (e.g. telephoning the police to report a crime). These requests can range from individuals asking for help handling their difficulties, or from community groups requesting a certain level or pattern of service to meet their interests (ibid.).
Police work predominantly involves reactive policing. Black & Reiss (1970) found that 72% of police-juvenile encounters were citizen-initiated. Similarly, Webster's (1970) findings indicated less than 20% of police encounters were self-initiated (proactive). More recent findings indicate the same trend but to a lesser degree: approximately 50% (Cordner, 1989) and 53% (Ericson, 1982) of police encounters were reactive and a large proportion of the balance involved administrative work. A study of a large police force in eastern Canada found that even reactive policing does not involve a large number of calls that relate to crime control (approximately 35%) (Shearing, 1984). Hence, earlier conclusions that "the moral standards of the citizenry have more to do with the definition of juvenile deviance than do the standards of policeman on patrol"
(Black & Reiss, 1970: 66-67) are borne out by existing Canadian research.
In the reactive situation, a police officer can exercise his or her discretion only after two events have occurred:
- (i) a decision has been made by either a member of the public (observer, parents, school authorities, etc.) or the victim to call the police, and
- (ii) the dispatchers have decided this incident warrants sending a patrol car to the scene.
Stated differently, typical mobilization scenarios are:
- (i) police are called by a complainant or witness while the incident is in progress,
- (ii) police are called by a complainant or witness after the incident is completed,
- (iii) police discover an incident in progress,
- (iv) police discover a completed incident, or
- (v) police are notified by other agents in the criminal justice system (judge, probation officer, etc.).
Thus, the detection of crime can be seen as an organizational mobilization (Black & Reiss, 1970).
Within our sample, interviewees were asked whether they felt their work was mostly reactive, mostly proactive, or a bit of both. About one half (51%) told us they felt their work was a bit of both, just under one half (40%) indicated their work was mostly reactive, and 9% suggested it was mostly proactive. The responses suggest three different understandings of the word 'proactive'. First, some officers indicated that even when they respond to a call from dispatch, which is traditionally considered reactive policing, they can choose to deal with the incident proactively (e.g. informally mediating between parties). Second, officers suggested that they not only responded to calls for service by dispatch but proactively went to known 'hot spots' for youth-related deviance (e.g. parks, donut shops). Finally, some officers working within specialized programs (e.g. SHOCAP, SHOP) would proactively check for probation condition compliance by actively door-knocking to ensure the young person was home during the curfew period. All of these conceptualizations of the term 'proactive' led to their answering our question with 'a bit of both'. Those officers that indicated their work was mostly proactive tended to focus on crime prevention initiatives as a community service officer, or were assigned as a school liaison officer who did not perform any enforcement-related duties within the schools. Finally, a large proportion of those who felt their work was primarily reactive worked in patrol or the general investigation section (GIS) [3].
There are several different ways that police officers become aware of youth-related incidents. These include: dispatch, patrol investigation, parents calling in, coming across an in-progress incident while in the field, proactively going to hot spots, through weekly meetings, or via other system agents (e.g. social services, probation, and school officials). Figure 1 presents the percentage of police services that indicated the various ways they become aware of youth-related incidents (percentages add to more than 100% since multiple answers were permitted).
Figure II.1. How police become aware of youth-related incidents
The majority of officers indicated that the most common ways they find out about incidents involving youth are via dispatch (85%) or coming across an incident while it is in progress (77%). However, they also receive information from other system agents (55%) and parents (53%). In some jurisdictions, police services have worked very hard to improve their links with the community as well as with other parts of the criminal justice system. With over half of the respondents indicating system agents and parents, this suggests these efforts have been successful to some degree. Finally, officers also told us that they find out about incidents through patrol investigations (40%), proactively going to hot spots (39%), and through weekly meetings with other police officers, community members, or system agents (15%).
Police officers predominantly agreed (88%) that the way they become aware of youth-related incidents does not impact on their use of discretion. Of the 12% whose exercise of discretion was affected, some said that it was the amount of time which had elapsed after the incident that might affect them: they might exercise discretion differently if they were receiving the information several days later (regardless of the way in which they received that information). A few also mentioned that they would respond differently, based on the type of offence (e.g. serious violent offences).
How police officers become aware of youth-related incidents can vary by location of service, type of community, and by province or territory. There was no variation between police types (independent municipal, First Nations, RCMP, or provincial). When police officers are assigned to general duty (patrol), they tend to find out about youth-related incidents through dispatch or coming across them in the field. However, detectives in GIS, officers in a youth division, or school resource officers can potentially find out about these incidents in all of the ways previously discussed.
Two aspects of the detection of youth-related incidents appear to vary with the type of community (metropolitan, suburban/exurban, rural/small town). Learning of the incident from the youth's parents, who have called about it, is more likely to be cited by officers in metropolitan areas (53%) and in rural/small town jurisdictions (59%), and less in suburban/exurban areas (37%). This may due to the nature of the suburban community ("bedroom community"), in which a significant proportion of the population commutes to a metropolitan area. However, this is speculation and no theories have been offered to explain differences in crime detection between these three types of communities. The highest proportion of officers who indicated parents calling in were in Ontario (73%) and the smallest proportion were in the Prairies (35%). System agents provide police with information about young persons more often in metropolitan areas (77%) than in suburban/exurban (42%) or rural/small town areas (45%). This may be due to differences in the human resources available in different types of communities.
A very clear difference is seen when comparing by province and territory the proportion of officers who proactively go to hot spots. 78% of officers in the Yukon, Northwest Territories, and Nunavut indicated that they find out about youth-related incidents through proactively seeking them out. This can be attributed to a very different style of policing that occurs in the Territories. Officers stated that to be accepted by the communities, which tend to be quite small, they spend very little time in their detachment offices and interact with the residents on a daily basis on and off shift. Members indicated they were out on the road all the time stopping and chatting with the kids at the skateboard park, the arena or wherever the local youth congregated. One officer stationed in Nunavut suggests that officers should "always try to have an open door policy, open to every conversation. I think the best approach is to be very visible, not stay in the office that was the best thing"
. Another officer stationed at an isolated detachment says that "up north, a police officer has to get out and meet people, particularly children. The children will tell you exactly what 's going on, in what house, and who does it"
.
1.1 Clearing the incident
The process of dealing with an incident can be broken down into five stages, or decision points (Klinger, 1996). The first stage is gathering initial information and making a decision as to whether further investigation is warranted; i.e. deciding whether the incident involves a criminal violation (is founded or unfounded). In the second stage, investigation results in the identification of the offender(s), or "clearing" the incident. The third stage involves the choice of disposition for each apprehended offender. This can entail the police laying a charge (or referring a recommendation to the Crown to charge in some provinces), with or without a recommendation for post-charge Alternative Measures; referring the youth to pre-charge Alternative Measures or a Youth Justice Committee, or taking informal action. The next decision is whether to make a police (occurrence) report. If the suspect is charged or referred to Alternative Measures, a report must always be completed. However, if an officer chooses to use informal measures to handle the incident it is up to the officer's discretion or departmental policy [4] whether a report is completed. Finally, if charges are (to be) laid, an officer (or officers) make a decision concerning the mode of compelling his or her attendance at court: whether the youth is to be given an appearance notice, summonsed, or taken into custody (arrested); and, if arrested, whether to be released or held for a judicial interim release hearing. Thus, officers make three fundamental decisions:
- (i) whether a youth should be charged or dealt with in other ways;
- (ii) if not charged, what type of diversion is appropriate (Hornick et al., 1996); or,
- (iii) if charged, how to compel attendance at court.
The typical process involved in clearing youth-related incidents varies, depending on the type of officer who is responsible for making the decision: patrol, general detective, or youth bureau detective. A member on patrol tends to deal with the investigative process in a similar fashion for youths and adults, with a few exceptions. The officer decides whether an offence was committed, and, if so, who did it. Subsequently, the officer determines whether the youth should be arrested and brought back to the station. Officers often mentioned they would be more likely to let a 16 or 17 year old go at the scene with an appearance notice, as they were able to notify the parents by telephone. However, with a 12 to 15 year old they were more inclined to have the parents come to the station to pick up the young person. One officer summarized this process thus:
A 16 or 17 year old we can release them on an appearance notice and notify the parents later. But if he's under 16 then we make every effort to contact the parents, we don't release him unless we can find a parent. If we have to bring them in as a result, they are arrested.
Thus, the requirement (under the YOA) to notify the parents, coupled with a concern about the young person's welfare, increases the use of the power of arrest.
Depending on the organizational structure, some police services refer certain types of offences to a youth bureau or the general investigative (detective) section (GIS). In those circumstances, the patrol officer will conduct the preliminary investigation, possibly arrest the young person, and pass the file off to the appropriate investigative section. It is once the file has been taken on by the youth bureau or GIS that the parents are notified, the Section 56 waiver is repeated, statements are taken, and decisions for compelling appearance are made. In one Ontario police service, all files that involve young persons are referred to the youth bureau where the decision is made whether the case will be dealt with informally, by alternative measures, or by way of charge. However, in most police services, if informal action is chosen it is done at the level of the patrol officer.
An officer's and police agency's attitudes towards informal action and alternative measures can also have an impact on how youth-related incidents are cleared. Many police services have departmental policies that specify which youth-related offences can be considered for alternative measures. None of the police services which we interviewed had policy regarding informal action. However, officers did indicate that there were unwritten rules regarding when informal action is considered appropriate. Some police officers felt very strongly that informal action and alternative measures either work or don't work. For officers who were sceptical about the efficacy of informal action and diversion, only the most minor offences would be considered appropriate to be dealt with outside the formal system.
1.2 Proportion of apprehended young persons who are charged
The main statistical indicator of the exercise of police discretion with respect to laying charges is the proportion of young persons apprehended by police who are charged.
The Uniform Crime Reporting (UCR) Survey provides aggregate numbers of young persons charged (or recommended by police for charging, in provinces with Crown screening) and young persons not charged (but apprehended), by police service, by year, for all of Canada. The numbers of 'youth not charged' reported in the UCR do not distinguish among the reasons for not charging; in particular, they do not distinguish informal action from referral to alternative measures (although this is done by another statistical indicator of police discretion, which is presented later in this section).
From these numbers, we can calculate the proportion of apprehended youth who were charged, which is a rough indicator of the "amount" to which police use their discretion not to lay charges in all cases. It is by no means a perfect indicator of police discretion, for at least three reasons. First, when officers resolve an incident informally, they do not always make a record of it; and if it is not in the RMS (Records Management System) of the police service, it cannot be reported to the UCR. However, a record is always created when officers lay a charge. Second, police services in Canada vary in the degree to which they take the trouble to report numbers of 'youth not charged' to the UCR. The more of these 'youth not charged' who are omitted from the UCR return of a given police service, the more its use of discretion will be underestimated by the variable, 'proportion charged'. In the extreme case, a police service such as Toronto, which has a practice of not reporting numbers of youth not charged, will have a 'proportion charged' of 100%, and appear to exercise no discretion at all with apprehended young persons. Thus, 'proportion charged' tends, to an unknown extent, to underestimate the amount of police discretion. On the other hand, not all 'youth not charged' represent the exercise of police discretion: some apprehended youth cannot be charged, for reasons beyond the control of the police, such as the death, disappearance, or diplomatic immunity of the accused youth. Thus, 'proportion charged' overestimates, to an unknown extent, the extent of police discretion. For these reasons, this indicator is not a reliable basis for comparisons of the use of police discretion by individual police services. Nevertheless, it can be used to compare the use of police discretion, aggregated to the level of the province/territory, and to track changes in police discretion over time within provinces and territories (Carrington 1999; Scanlon 1986: 94-95).
1.2.1 Changes over time and differences between jurisdictions
Carrington (1999) found that the proportion of apprehended young persons charged by police was stable at about 55% during 1977-1983, under the Juvenile Delinquents Act [5], jumped to approximately 65% after the Young Offenders Act came into force, and remained, with minor variations, at that level until 1996. Figure II.2 updates Carrington's analysis to 2000, and shows what appears to be a declining trend from 1991 to 2000 (when 59% of young persons apprehended in Canada were charged), although additional years of data will be needed to establish this apparent trend with certainty. The average proportion of apprehended young persons charged from 1986 to 2000 was 64%, which is substantially greater than the average of 55% for the period, 1977-1983.
Figure II.2. Proportion of apprehended young persons charged, Canada, 1977-2000
Sources: 1977-1996: Carrington (1999); 1997-2000: UCR Survey.
Looking at the trends over time in separate provinces and territories, Carrington (1999) identified two groups: those in which police had exercised a relatively low degree of discretion not to charge under the Juvenile Delinquents Act (charging 50% - 80% of apprehended youth in 1983), and continued to exercise a low degree under the YOA (Newfoundland, New Brunswick, Quebec, Manitoba, Alberta, British Columbia, and the Yukon); and those (P.E.I., Nova Scotia, Ontario, Saskatchewan, and the Northwest Territories) in which police had exercised a relatively high degree of discretion under the JDA (charging 25% - 50% of apprehended youth in 1983) but suddenly started to charge higher proportions when the YOA came into effect, so that the amount of discretion exercised approximated that in the first group of provinces. The change in Saskatchewan - from an average level of 24% of apprehended youths charged during 1977-1983 to an average level of 67% during 1986-1996 - was the most spectacular, but the second largest increase was in Ontario - from an average level of 34% of apprehended youths charged during 1977-1983 to an average level of 64% during 1986-1996 - and is particularly significant because Ontario accounts for such a large part of the population of Canada.
Figure II.3 shows the proportion of apprehended youth charged in each province and the Territories in the year 2000, and Figure II.4 (on the following pages) shows the trends over time since 1977 [6].
Figure II.3. Percentage of apprehended young persons charged, by province, 2000
Sources: 1977-1996: Carrington (1999); 1997-2000: UCR Survey.
Three patterns are evident in Figures II.3 and II.4. The most striking pattern, noted by Carrington (1999), occurred in Ontario, Saskatchewan, and the Territories, and to a lesser extent in Prince Edward Island and Nova Scotia. This is a sudden shift when the YOA came into force from a regime of high levels of police discretion (low charging) with young offenders to much lower levels of discretion, bringing these jurisdictions into line with the rest of the country. Carrington (1999) pointed out that this change was probably caused, at least in part, by the change in the age jurisdiction of the youth justice system mandated by the YOA; since these four provinces and two territories make up six of the eight jurisdictions in Canada which underwent the major change from a maximum age of 15 years under the JDA to a maximum age of 17 years under the YOA. However, the increase in proportions charged was not simply due to 16 and 17 year olds being charged in higher proportions than 12 to 15 year olds: as Carrington (1998b) showed, apprehended young persons of all ages from 12 to 17 were charged in substantially higher proportions in Ontario and Saskatchewan after the YOA came into effect.
Figure II.4 Proportion of apprehended young persons charged, by province, 1977-2000
Note: 3-year moving averages have been used for smoothing.
Sources: 1977-1996: Carrington (1999); 1997-2000: UCR Survey.
The second pattern, occurring in Quebec and British Columbia, is an increase in the use of police discretion (declining levels of charging [7] ). This is most pronounced in Quebec, which has been transformed from the province with the highest average levels of charging during 1977-83 to the province with the second-lowest level in 2000. The level of charging of apprehended young persons in British Columbia has declined from a high of 66% in 1981 to the lowest level in Canada (40%) in 2000. Many police officers whom we interviewed in British Columbia expressed dissatisfaction with the Crown screening regime, which they see as taking an important tool out of their hands; and we speculate that the decline in recommendations to charge by police in that province may, to some extent, reflect the preferences of police to dispose of youth-related incidents in other ways which remain under their control, such as informal action or referral to pre-charge diversion.
It appears that one effect of the YOA has been to impose greater uniformity across Canada in the use of discretion concerning the charging of youth (see Figure II.3). In 1977, there was wide variation among the provinces and territories in the proportions of apprehended youth who were charged: from 23% in Saskatchewan to 84% in New Brunswick. Nine of the eleven jurisdictions (combining the Territories) were more than 10% higher or lower than the national rate of 56%. In effect, the jurisdictions were polarized into low-charging and high-charging regimes, with only two jurisdictions (Alberta and the Territories) close to average. Low-charging regimes included - in ascending order of proportion charged - Saskatchewan, Prince Edward Island, Ontario, and British Columbia. The other five provinces charged high proportions of their apprehended youth. In 2000, the range of provincial/territorial proportions charged had narrowed considerably: the lowest was 40% in British Columbia, and the highest was 73% in Manitoba. Only four jurisdictions differed by more than 10% from the national rate of 59%: British Columbia and Quebec on the low side, and Manitoba and Ontario on the high side.
1.2.2 Differences between types of police agencies
In order to compare the use of discretion not to charge young persons by different types of police agencies, we calculated from UCR data the proportion of apprehended young persons charged by each of the 93 police services in our sample. We chose a period of three years (1998-2000) combined, in order to smooth out any anomalies that might have occurred in any police services in any one year. Eight police services, in four provinces, reported charging 95% or more of apprehended youth; we omitted these from the analysis, in case they represented under-reporting of number of youth not charged. The three First Nations police services were also omitted from the analysis, since this is too small a number for reliable calculations.
The resulting sample of 82 police services reported charging an average of 61% of apprehended youth. This is the same as the overall rate of charging of apprehended youth for all police services reporting to the UCR in 1998-2000. This suggests that our sub-sample of 82 police services is representative of all services in Canada, at least with respect to this phenomenon. However, as is shown below, the sample is more representative in some provinces than in others.
Overall, independent municipal police services in our sample (n = 46) reported charging an average of 61% of youth whom they apprehended. RCMP detachments (n = 26) had a slightly lower rate of charging apprehended youth (56%), and provincial police detachments (OPP and RNC, n = 10) had a considerably higher rate (79%).
However, clearer patterns emerge if the comparison is made within provinces. Table II.1 shows that, in British Columbia, Alberta, and Manitoba, RCMP detachments in our sample reported charging considerably lower proportions of apprehended youth than the independent municipal services in those provinces. Little difference is observed in Saskatchewan or New Brunswick. In the Territories, where RCMP detachments are the only police services, overall rates of charging (Table II.1, last column) are either similar to (in the Yukon and Northwest Territories) or lower than (in Nunavut) the overall national rate. Since the RNC and RCMP are the only police services in Newfoundland, and since the rate of charging reported by the two RNC detachments in our sample (80%) is much higher than the overall provincial rate (65%), we can deduce that in Newfoundland, RCMP detachments must have a considerably lower rate of charging than the RNC. The OPP detachments in our sample reported charging an average of 79% of youth whom they apprehended, which is a considerably higher rate than that reported by the independent municipal services in Ontario.
| Province or territory | Independent Municipal Police sample(n=46) (%) | RCMP sample(n=26) (%) | Provincial police sample(n=10) (%) | Overall sample(n=82) (%) | Overall (all UCR) (%) |
|---|---|---|---|---|---|
| British Columbia | 73 | 42 | 56 | 44 | |
| Alberta | 64 | 46 | 51 | 59 | |
| Saskatchewan | 75 | 77 | 76 | 73 | |
| Manitoba | 95 | 80 | 85 | 81 | |
| Ontario | 65 | 79 | 69 | 70 | |
| Quebec | 44 | 46 | 46 | ||
| New Brunswick | 64 | 60 | 63 | 69 | |
| Nova Scotia | 70 | 70 | 69 | ||
| Prince Edward Island | 76 | 76 | 57 | ||
| Newfoundland | 80 | 80 | 65 | ||
| Yukon | 61 | 61 | 61 | ||
| Northwest Territories | 68 | 68 | 62 | ||
| Nunavut | 47 | 47 | 51 | ||
| Overall | 61 | 56 | 79 | 61 | 61 |
Source: UCR Survey.
In summary, based on a sample of 82 police services, it appears that in provinces in which the RCMP serves as the provincial police force, it exercises considerably more discretion not to charge young persons than the independent municipal services in those provinces. On the other hand, the two provincial police services in our sample appear to charge apprehended youth in considerably higher proportions than the independent municipal services in those provinces. These comparisons must be interpreted with caution, both because of the unreliability of UCR data on numbers of youths not charged, and also because of the small size of our sample and its apparent non-representativeness in some provinces (suggested by a comparison of the last two columns of Table II.1).
1.2.3 Differences by type of offence
The importance of the type, or seriousness, of the offence in the exercise of police discretion has been emphasized by practically every writer on the subject. The impact of various case-related factors on the decision to charge, including the type of offence, is explored in depth in Chapter V. In Table II.2 (below), we present data from the UCR Survey for 2000 to describe the variations in proportions of apprehended young persons charged, by the type of (alleged) offence.
This simple distribution gives the lie to the truism that the exercise of police discretion is related in a straightforward way to the "seriousness" of the offence. For example, less discretion is exercised with offences against the administration of justice than with any other offence except homicide and attempt murder - although administrative offences have no victim and cause no harm, except expense and inconvenience to the justice system [8]. If discretion varies inversely with seriousness of the offence, then possession of stolen property is more serious than abduction, major assaults, drug trafficking, break and enter, sexual assaults, etc.; impaired driving is more serious than break and enter, sexual assaults, sexual abuse, etc.; arson is less serious than almost any other offence; and violent crimes, as a group, are slightly less serious than victimless ("Other") crimes. Clearly, there is some relationship between the seriousness of the offence and the amount of discretion exercised by police, but the relationship is not straightforward, as Carrington (1998a) also found.
- [2] For example, Ericson (1982) found proactive policing directed at lower status citizens who either presented problems in the officer's view or were out of place in the neighbourhood.
- [3]The influence of proactive versus reactive policing on the exercise of discretion is discussed in Chapter IV, Section 6.
- [4] Some jurisdictions (e.g. Ottawa-Carleton Regional Police) have internal policies that dictate the use of a formula-based decision-making model such as the Prevention Intervention at the Pre-Court Level (PIP) Program or the John Howard Pre-Charge Diversion Program (Hornick etal., 1996).
- [5] Data are not available for years prior to 1977.
- [6] 1984 and 1985 are omitted due to the difficulty of calculating per capita annual rates for those years, when the change in age jurisdiction of the youth justice ystem was being phased in.
- [7] Actually, recommending charges, since, in both Quebec and British Columbia, it is the Crown that makes the final decision concerning laying a charge against a young person.
- [8] The exercise of discretion by police with offences against the administration of justice is discussed in detail in Section 5.0 below.
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