Police Discretion with Young Offenders

III. Environmental Factors Affecting Police Discretion

2.0 Provincial policies and procedures

2.1 Modalities of delivery of Alternative Measures: Pre-charge, post-charge, and mixed models

According to reports based on the Canadian Centre for Justice Statistics Alternative Measures Survey (MacKillop, 1999; Engler and Crowe, 2000), authorized Alternative Measures programs for young persons in Ontario and the Yukon are exclusively post-charge, those in New Brunswick, Manitoba, and Alberta, are exclusively pre-charge, and the other provinces and territories have both types of programs ("mixed" model); however, programs in Quebec are predominantly pre-charge, and those in Saskatchewan are predominantly post-charge (MacKillop, 1999).

These decisions by the provincial authorities concerning the modalities of delivery of Alternative Measures have an obvious impact on decision-making by police in youth-related cases, because they define the available alternatives to charging or informal action.

In provinces with exclusively, or almost exclusively post-charge programs, police must lay a charge against a youth whom they consider suitable for alternative measures. This represents a form of net-widening if these youth would otherwise have been dealt with informally or by pre-charge alternative measures; since the laying of a charge, even if it is subsequently withdrawn or stayed, represents a greater penetration of the formal youth justice system by the young person than if s/he had been dealt with informally or by pre-charge alternative measures. The issue of net-widening in relation to post-charge AM is, then: Would (some of) the youth who are referred to post-charge alternative measures have been dealt with by informal action - or by pre-charge alternative measures, if that option had been available?[26]

Figure III.1 Clearance status of youth-related incidents, all UCR2 respondents, by province, 2001

Figure III.1 - Clearance status of youth-related incidents, all UCR2 respondents, by province, 2001 - If the following image is not accessible to you, please contact Youth Justice Policy at Youth-Jeunes@justice.gc.ca for an alternate format.


Source: Incident-Based UCR Survey, 2001.
Note: So few police services in Newfoundland, Nova Scotia, Manitoba, and British Columbia
reported to the UCR2 in 2001 that it would be misleading to include them in this analysis.

A partial answer can be gleaned from UCR2 data on the clearance status of youth-related incidents in 2001 (Figure III.1). These data are rather incomplete, since the number of police services which reported to the UCR2 in 2001 was sufficient to support an analysis of clearance statuses in only five provinces; and in two of those five, only four (municipal) police services reported. Also, some police services under-report their use of informal action, to an unknown extent. With these limitations in mind, we can still see that in Ontario, which has an exclusively, or almost exclusively, post-charge model, and in Saskatchewan, which depends heavily on post-charge alternative measures (MacKillop, 1999: 9.32, Table 1), the proportions of youth-related incidents resulting in charges being laid are considerably higher than in the other provinces (80% and 83%, compared with 55% - 76% in the other provinces, and 70% for all respondents in the UCR2 Trend Database - see Figure II.6, above). This is strong evidence that the cases in these two provinces which were referred to post-charge alternative measures via a charge were additional to those which would in any case have resulted in a charge; i.e., of net-widening. Since the proportions of youth-related incidents resulting in informal action in these two provinces are not too different from those in the other three provinces, it appears that the cases which resulted in charges and then post-charge alternative measures were those which in other provinces would have been dealt with by pre-charge alternative measures.

We can use the data in Figure III.1 also to assess the argument that pre-charge alternative measures also represent a form of net-widening, because cases referred to pre-charge alternative measures would, in the absence of such programs, have been dealt with by the less intrusive means of informal action by police. Figure III.1 does not support this argument, although it does not clearly refute it either, due to the incomplete nature of the data. In Quebec, pre-charge alternative measures does not appear to cause net-widening (relative to the other provinces), since it has a higher proportion of youth-related incidents (25%) cleared by informal action than either of the provinces which have no, or very few, pre-charge programs (Ontario and Saskatchewan). New Brunswick and Alberta, the two other exclusively pre-charge provinces, have approximately the same proportions of incidents cleared by informal action as mixed-model Saskatchewan, and somewhat lower proportions than Ontario, with its post-charge model. Thus, the three provinces with exclusively, or almost exclusively, pre-charge alternative measures, include the one with the highest level of use by police of informal action (Quebec), the one with the lowest level of use (Alberta), and one which is intermediate (New Brunswick). Thus, the limited statistical evidence available to us neither supports nor refutes the argument that pre-charge alternative measures have resulted in net-widening.

2.2 Crown screening versus police authority to charge

In two provinces - Quebec and British Columbia - it is the Crown, not the police, which makes the decision whether to charge a young person.[27] In these provinces, police make a recommendation to charge, but Crown approval is needed before a charge may be laid. However, crucially, it is only the decision to charge which requires Crown approval: a police decision to resolve the incident by informal action is not reviewed by the Crown. Almost one-third (31%) of the police agencies in our sample, and slightly more than one-third of the population of Canada, are in these two "Crown screening" provinces. In this section, we examine whether the location of the authority to lay a charge (with the Crown or with the police) affects police decision-making with youth-related incidents.

In most aspects which we examined, the location of the authority to charge did not appear to influence the decision-making with young offenders of our respondents. However, differences were evident in the responses to two questions: whether there are any offences which "almost always" result in using informal action, and whether alternative measures are effective.

The responses which we received concerning the use of informal action were somewhat contradictory. On the one hand, almost half (45%) of the officers interviewed in provinces where they have the authority to charge said that there are no offences that "almost always" result in the use of informal action, compared to only 11% of officers in the Crown-approval provinces. This suggests that requiring Crown approval increases the likelihood that officers will use informal action. On the other hand, officers that have the authority to charge were more likely to say that they use informal action for "minor" and provincial offences than those in the Crown screening provinces. When asked for further clarification, officers in police-charging provinces suggested that they have more flexibility and do not look at each case solely on the basis of the type of offence when determining whether to use informal action.

Officers in provinces that require Crown approval appear to feel much more distanced from the process of charging. They offered two explanations for their difficulties with this regime. First, repeat young offenders know that the likelihood of a charge or prosecution for a breach of probation or failure to appear has become remote, and they do not hesitate to let these officers know. One officer succinctly stated, "by moving the process of charging away from the public [sic], the process is no longer accountable and it's open to unchecked bias". In other words, in his view, the Crown Attorney has determined the form and content of the charge, the sufficiency of the evidence, and approves the laying of a charge only if a good likelihood of conviction exists. One police chief in British Columbia informed us that he had sent a Report to Crown Counsel (RTCC)[28] back three times because the Crown refused to lay the charge. This particular young person had an extensive prior record and committed a new offence "virtually every day from theft to breaches". However, the Crown Attorney didn't want to proceed, as the offence was minor (theft under). Each time the RTCC was sent back, more information was added to try to present the case better, so that the Crown would realize that this young person was victimizing the same person and stealing small things repeatedly. A month and a half later, the charge was still not approved. As a result, 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.

Differences also emerged when officers were asked if they found alternative measures effective. Over half of the officers who have the authority to charge (60%) find alternative measures "usually" effective compared to only 17% of officers who require Crown charge approval. The majority of officers whom we spoke to in Crown screening jurisdictions find alternative measures only "occasionally" effective with young persons. When we asked these officers to elaborate, it became clear that the police in Crown approval jurisdictions are not usually aware of the outcome of referrals, or even necessarily which cases that are referred to alternative measures. Thus, they have difficulty assessing the effectiveness of alternative measures. Officers in both types of jurisdictions suggested that alternative measures are not right for everyone; however, officers without the authority to charge tended to feel that if a young person is to be referred out of the court process, the officer should have some input, since s/he initiated the case.

The analysis of UCR data which was reported in Chapter II (Section 1.2.1) found that the two Crown screening provinces have the lowest rate of charging of apprehended youth in Canada (Figure II.3). It is difficult to know if this is the result of Crown screening, or other attributes of the youth justice systems of these two provinces. Until the early 1990's, the charge rate in Quebec was higher than the national average, and the rate in British Columbia was approximately equal to the national average (Figure II.4). It is only in the past decade that charge rates in these two provinces have declined substantially; whereas the Crown screening regime has been in place much longer.