Police Discretion with Young Offenders

II.  A Descriptive Profile

8.0  Summary

Our discussions with police concerning their use of discretion in decisions whether to arrest, whether to charge, use informal action, or divert, and how to compel appearance at court when a charge is laid, suggest to us that police officers (and police services) tend to see their powers as providing, in combination, a multidimensional repertoire of options for "resolving", or disposing of, an incident. Within the limitations imposed by the law and provincial policy, police choose among these options on the basis of a myriad of case-related factors, which are so complex as to defy analysis. During interviews, officers repeatedly resisted our attempts to induce them to disentangle their decision-making process into discrete, prioritized, factors, and instead insisted that their disposition of each case depended on its own, unique, set of circumstances.

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. [23]

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.

  4. a. Give a formal warning; and/or

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

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

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

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

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

  8. 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 (Doob & Cesaroni, 2002: 139-146). In many jurisdictions, police said that this expedient is forced on them by the lack of suitable facilities and agencies for youth.

[23] This contrast between policing youth crime in metropolitan and rural/small town jurisdictions is explored in Capter III, Section 4.1