Police Discretion with Young Offenders

Executive Summary

This report was commissioned by the Department of Justice in support of the implementation and evaluation of the Youth Criminal Justice Act. The research had two main objectives: to provide a comprehensive description of the ways in which police in Canada currently exercise their discretion with youth, and to identify and assess factors which affect that exercise of discretion. Our intention was to provide information which could be used in two ways:

We collected in-depth qualitative and quantitative information on a nationally representative sample of 95 police services, including many OPP and RCMP detachments, by means of more than 200 interviews with officers, observation during "ride-alongs", police agency documents, and statistical data from the Uniform Crime Reporting (UCR) Surveys. The sample is representative of all provinces and territories, all types of communities, and all types of police service, including independent municipal services, provincial police, First Nations police services, and police training facilities.

Use of police discretion

Two aspects of police decision-making with youth were analyzed: 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; and the method(s) chosen to compel the appearance of the youth in court. 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. 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.

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 Promise to Appear (PTA) without conditions.

  5. Arrest, charge, and release on PTA with conditions on an Officer in Charge (OIC) Undertaking.

  6. Arrest, charge, and detain for a judicial interim release (JIR) hearing.

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

A third objective of police action arises from what police see as their crime prevention and social welfare responsibilities. On many 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. Officers sometimes also detain a youth who is at risk in the interests of the youth's safety or welfare.

The proportion of apprehended youth who were charged increased under the Young Offenders Act (YOA). This is mainly due to the enormous increase in charging in certain provinces, notably Ontario and Saskatchewan, which appears to be related to their reliance on post-charge delivery of Alternative Measures. The use of police discretion with youth in 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. This appears to be due to their unique screening systems for charging youth.

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.

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. The great majority of officers feel that they can play a useful role with some young offenders in some circumstances. Diversion to a program or agency is often seen as a much more effective way of dealing with a youth's perceived criminogenic problem than referring him or her to Youth Court; also, referral to Alternative Measures is seen 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.

Youth-related cases of administration of justice offences have increased exponentially in the past 20 years. Almost all of these are violations of bail or probation conditions and failures to appear for court. Police exercise less discretion with these offences than with any other offence except murder. 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 the 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: once a bench warrant is issued, they perceive their discretion as inapplicable. One way in which police do seem to be contributing to this epidemic is in their decisions concerning conditions of release from custody. In some circumstances, police will impose, or seek to have imposed, intrusive conditions which may inadvertently "set the youth up for failure".

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, but in fact they are rarely used. The main reason for this appears to be that when an officer contemplates laying a charge or referring to pre-charge Alternative Measures, s/he needs to obtain enough evidence to support a prosecution, which can be done much more satisfactorily in a police station than in the street or police car. Also, arresting the youth and taking him or her to the police station prior to laying a charge are seen as ways of impressing the seriousness of the situation upon the youth.

Following arrest and temporary custody, most officers prefer the Promise to Appear to the summons or appearance notice as a method of release, because it 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.

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. The alternative - releasing them to a dangerous and possibly lethal environment - is seen by some officers as neither prudent nor humane. The third type of rationale treats detention as another kind of police disposition - that is, as another in the repertoire of measures which police will take in order to administer a sanction, or meaningful consequence, for a youth's illegal behaviour.

Environmental factors

Police agencies operate within a complex environment, consisting of, among other things, the nature of the local community, federal and provincial legislation, policies, procedures, and programs, local public and private resources, and public opinion. The police have little or no control over their environment. Nor can any federal or provincial government agency expect to have much immediate impact on some salient aspects of the policing environment, such as the degree of urbanization, socio-demographic characteristics, or the level and type of crime of the communities which police serve. However, provincial governments can have an effect other aspects of the policing environment which affect the exercise of police discretion, namely the relationship of Crown prosecutors with the police, and the availability of diversion programs.

The availability of external resources to which apprehended youth can be diverted is seen by many police officers as crucial to their ability to avoid laying a charge. This availability varies widely. They are much more common in metropolitan jurisdictions than in suburban/exurban communities or, especially, rural communities and small towns. However, they are seen by officers as inadequate in all types of communities and all parts of Canada. When there is no available agency to which police can release a youth in need of immediate supervision or intervention, then they sometimes feel constrained to hold the youth for a bail hearing.

Some research, especially in the U.S.A., has found that urbanization is associated with higher crime rates and higher levels of formal action by police; whereas, there is less crime and a more neighbourly atmosphere in rural areas and small towns, and a corresponding less formal policing style. In Canada, there is no relationship between urbanization and the crime rate. Crime rates in small places are as high as those in the largest cities. However, youths commit more serious violent crime and property crime, and more gang-related crime, in metropolitan areas. There is also a different style of policing in rural and small town areas, and also some differences between policing in urban centres and their suburban and exurban fringes. Rural and small town communities have a distinctive social climate that appears also to influence police decision-making. With a higher density of acquaintanceship, rural and small town officers feel more accountable to the community. On the other hand, most rural areas and small towns in Canada are policed by detachments of the provincial police, including RCMP operating under provincial contracts, and detachment commanders in the RCMP and OPP are accountable to their superiors, and, ultimately, to headquarters in Ottawa or Orillia. Rural and small town officers suggested that the communities they police want the police to be tough on youth crime but not to incarcerate their youth. Officers in rural areas and small towns appear to make more use of informal action, but less use of pre-charge diversion, than officers in metropolitan and suburban jurisdictions.

29% of police services said there was "a lot" of youth crime in their community, 17% said "not very much", and the others indicated "a normal amount". Perceived high levels of youth crime are more common in the Prairies and the Territories, and in metropolitan areas. Police agencies in communities with "not very much" youth crime charge higher proportions of apprehended youth. They are also more likely to use various forms of informal action and pre-charge diversion, and they are more likely to detain for a JIR hearing and to cite "legalistic" rather than social welfare reasons for detention. Officers in most police services deal with high levels of minor property crime and minor assaults by youth. Three-quarters of the police agencies also perceive high levels of serious property crime by youth, especially break and enter. One-quarter identified a problem of serious violent youth crime. One-quarter identified a problem of youth gangs. Serious violent crime and gangs are both more common in metropolitan areas and the Prairies. 80% of the police services in the sample perceive a serious problem of drug-related crime among youth in their jurisdictions. These are spread across all the provinces and territories, and in all types of communities. 14% of the police services - all but one in metropolitan jurisdictions - identified a problem of teenage prostitution. We found no significant relationship between the types of youth crime identified in a jurisdiction, and the exercise of discretion with young persons in that jurisdiction.

42% of the agencies in the sample said that they have jurisdiction over significant populations of aboriginal peoples, living either on- or off-reserve. They are more prevalent in the Territories, British Columbia, and the Prairies. Police services which police off-reserve aboriginals have rates of charging apprehended youth which are a little higher than other police agencies. The interview data indicate that police agencies with jurisdiction over aboriginal populations are slightly more likely than other police services to use informal action, twice as likely to refer youth to a Restorative Justice program, less likely to use summonses or appearance notices, more likely to use a Promise to Appear and an OIC Undertaking, and more likely to detain for a JIR hearing because the youth is a repeat offender, is intoxicated, or for the youth's safety.

About two-thirds of respondents found the community to be generally or very supportive of the police; one-quarter offered fairly neutral or mixed assessments, and 14% found the community to be only "somewhat" or "not" supportive. We found no relationship between the exercise of police discretion with youth and the perceived level of community support.

Organizational factors

Probably the most salient aspect of the police organization in its decision-making with young offenders is whether or not it has a youth squad (or dedicated youth officers - that is, officers who are assigned exclusively to youth-related crime). Only 17 of the 92 police services in our sample have a youth squad or dedicated youth officers. These are all independent municipal police services, and the great majority (14) are large organizations, with more than 100 officers. They are located mainly in metropolitan areas, especially in Ontario, Quebec, and British Columbia. It is difficult for smaller police services and detachments to dedicate one or more officers exclusively to handling youth crime. Some smaller police services and detachments have officers who specialize in youth-related incidents, but who also do other kinds of police work. It appears that the use of youth squads and dedicated youth officers by Canadian police services has diminished considerably since their heyday in the 1970's, and that this is probably largely due to financial stringencies during the 1990's.

Police services with youth sections and/or dedicated youth officers respond differently to youth-related incidents. In particular, it appears from the interview data that they make more use of referrals to external agencies and pre-charge diversion, and less use of formal charges. They are more likely to use the less intrusive methods of compelling appearance. When using OIC undertakings, however, they tend to use conditions that are more restrictive and are targeted to the youth's alleged criminal conduct. They are also more likely to use detention, like the conditions of release, as a means of addressing what they see as the criminogenic conditions of the youth's life. Many innovative programs are developed by youth officers, and they are able to involve themselves proactively with youth in the community within a primary, secondary or tertiary capacity. Youth officers acting as follow-up and as a resource to patrol officers facilitate the gathering of intelligence and an increased knowledge of alternatives to formal youth court. In a sense, the existence of a youth squad - just like the existence of a homicide or armed robbery unit - is an indication that the police service recognizes the unique nature of this particular kind of crime, and places priority on developing specialist expertise in responding to it.

83% of police agencies in the sample have School Liaison Officers (SLO's), but only 40% assign enforcement duties (response, investigation and disposition) to their SLO's - in the other police services, the role of the SLO is restricted to making crime prevention presentations in schools. SLO's, especially with enforcement duties, are more common in larger police services, presumably because of resource considerations. The presence of SLO's, especially SLO's with enforcement duties, slightly reduces the use of charging with young offenders. Police agencies which have SLO's, especially SLO's with enforcement duties, appear to use less intrusive means of dealing with youth crime: they are more likely to use informal action, less likely to lay charges, bring the youth home or to the police station for questioning, more likely to make referrals to external agencies, more likely to use pre-charge diversion, and more likely to use appearance notices to compel attendance at court.

Community policing has four dimensions: philosophical, strategic, tactical, and organizational. The strategic dimension of community policing comprises the adoption and public promulgation of written policies and protocols for all aspects of policing, and the allocation of significant resources to community policing. According to the officers whom we interviewed, 22% of the police services in the sample have implemented the strategic dimension by allocating significant resources to community policing. Police services which have allocated significant resources to community policing have lower charge rates. They use more informal action, make more referrals to external agencies, use more pre-charge alternative measures, and more PTA's to avoid detaining the youth, or "as a higher consequence" (than the summons or appearance notice) for the youth.

The tactical dimension of community policing includes involvement in crime prevention programs and the adoption of the problem-oriented policing (POP) model. Every police agency in the sample is involved in crime prevention programs, but the degree of involvement varies considerably. Agencies with a higher level of involvement in crime prevention programs tend to have a lower rate of charging, especially in communities with high levels of youth crime. More involvement in crime prevention programs is associated with more use of informal action. Adoption of the problem-oriented policing (POP) model does not appear to have a large impact on decision-making with youth.

About half of the sample was able to provide documentation on policies and protocols for handling youth-related incidents and young offenders. However, only 13% of officers whom we interviewed found their organizations' policies and protocols helpful, and only 2% found them to be realistic. Police services which have youth-related policies and protocols charge fewer apprehended youth: they tend to make more use of pre-charge diversion, and of appearance notices. Officers who find their agency's policies and protocols for handling youth helpful or realistic are more likely to use various forms of informal action, referrals to external agencies, pre-charge diversion, and appearance notices; and to "follow the law" and not to invoke social welfare considerations, in making detention and release decisions.

There are two common models for the authority and responsibility to lay a charge: front-line autonomy, and front-line initial decision with review by another officer(s). The impact of the procedural model for charging varies, depending on whether the police service has a youth squad or not. The model with the lowest charge rates is front-line autonomy in a police service which has youth specialists. The model with the highest charge rate is front-line autonomy with no youth specialization. The implication is that front-line autonomy results in greater use of discretion not to charge young persons if the front-line officer has training to deal with youth, or if the police service is committed to using discretion with youth, as indicated by its establishment of a youth squad. Agencies in which there are no dedicated youth officers, and front-line officers decide alone on the disposition of youth-related cases, tend to use referrals to external agencies and pre-charge diversion less, and lay charges more. Finally, autonomous patrol officers appear to use less intrusive measures to compel the attendance of a young person in court.

40% of officers said their work was mostly reactive, 9% said it was mostly proactive, and 51% said that their work involved "a bit of both". Officers whose work is mostly proactive are more likely to use informal action, less likely to use formal charges, less likely to detain youth for a JIR hearing, but more likely to use more intrusive conditions on release Undertakings.

Decentralized police agencies use more informal action, more pre-charge diversion, more Promise to Appears (PTA's), more conditions on release Undertakings, and more detention for JIR hearings.

Offence- and offender-related factors

The "legal" factors of the seriousness of the offence (including its Criminal Code classification, the presence and type of weapon, and harm done to the person or property of a victim) and the youth's history of previous police contacts are by far the most important determinants of the officer's decision whether to lay a charge or resolve the incident otherwise. However, the relationship between the type of offence and the likelihood of charging is not a simple question of "seriousness". Some more serious offences have lower charge rates, and some less serious offences have higher charge rates. A charge is much more likely if the "youth was carrying a weapon, especially a firearm (which is very rare), or if a victim suffered significant harm to person or property".

The youth's history of previous criminal activity has a very strong influence on police discretion. The number of prior apprehensions of the youth is the strongest single predictor of the decision to charge.

The next strongest influence on the decision to charge is the youth's demeanour. Officers stressed the importance of the youth's accepting responsibility for his/her wrongdoing, and their willingness to "give him a break" when remorse and respect for the law were expressed. They also repeatedly referred to "accepting responsibility" as a criterion of eligibility for Alternative Measures.

The next most important factors in the decision to charge are the victim's expressed dispositional preference, the extent and nature of parental involvement (whether parents appeared to be willing and able to take custody and control of the youth, and whether they expressed an appropriate attitude to their child's wrongdoing), and the stability of the youth's home and school situations.

40% of respondents mentioned whether the crime was gang-related, and 22% cited the youth's gang affiliation, as factors or major factors in their decision-making.

28% of interviewees said that the youth's age was a factor or major factor in their decision-making. An apprehended 17 year old youth is 50% more likely to be charged, even when other factors such as the seriousness of the offence and his/her criminal history are controlled.

Some other factors play a minor or secondary role in the police decision to charge: whether the incident involved one or more offenders, the location and/or time of day, whether the youth was under the influence of alcohol or drugs, any relationship between the youth and a victim, and whether an adult co-offender as involved.

The type of victim (person or business) and the youth's gender and race play little or no role in the decision whether to charge, according to officers interviewed. Analysis of statistical data from the UCR2 Survey suggests that aboriginal youth are substantially more likely to be charged, even when other related factors are controlled.

We compared the views on the importance of these factors of officers from different parts of the country, different types of communities, and in different functional assignments. The most striking result was the consistency of views across all officers (and the consistency of the interview data with the results of statistical analysis of UCR2 data, and, indeed, with most previous research, in Canada and in other countries).


Our research suggests that the main impediment to police diversion of apprehended youth is the lack of suitable programs. The great majority of police officers whom we interviewed believe that informal diversion and Alternative Measures are potentially valuable responses to youth crime, but many officers are unable to use them at all, and practically all officers are unable to use them as much as they would like to, because of their unavailability. Thus, they feel they have no alternative but to lay a charge in circumstances where mere informal action is, in their view, an inadequate response.

At least from the point of view of the police whom we interviewed, post-charge diversion programs are not an attractive alternative. They have little input to the post-charge diversion decision, and are ignorant of its outcome. It appears paradoxical to them that they have to lay a charge in order to divert the youth. Our analysis of statistical data lends support to the commonsense view that post-charge alternative measures result in an increase in charging.

Apart from diversion programs per se, social programs which can offer help to youth in need or at risk are, according to many of our respondents, woefully inadequate. In the absence of these programs and agencies, police officers sometimes find themselves in the position of surrogate social workers, seeing no alternative to the use of their powers to arrest, charge and detain youth whose main needs are for protection and assistance, not criminal sanctioning.

Concerning informal action, our conclusion from this research is that it is, and always has been, widely used by police with apprehended youth, and will continue to be under the new statute. However, there is room for a huge expansion in its use. Under the Juvenile Delinquents Act, many police services used informal action with three-quarters or more of apprehended youth. Quite a few police services and detachments, particularly in Quebec and British Columbia, currently charge only 20-30% of apprehended youth. The YOA explicitly authorized the use of police discretion with youth: to take "no measures" or "measures other than judicial proceedings" but it seems that the implementation of the YOA was singularly unsuccessful in legitimating, for both the police and the public, the use by police of informal action with youth. Most police officers continue to see informal action (and pre-charge diversion) as "giving the kid a break", rather than as a legitimate law-enforcement response to a violation of the law.

The YCJA encourages informal action by police, and makes it presumptive instead of merely acceptable with non-violent first offenders. However, it seems to us that a major educational campaign will be needed to persuade the police that informal action is a fully legitimate and appropriate response to juvenile lawbreaking - just as legitimate and appropriate, in some circumstances, as referral to a program or to court.

The YCJA also encourages the use of non-judicial measures with administrative offences. However, as with the use of informal action by police, it seems to us that the implementation of this new way of thinking about administrative offences will require a major effort.

The two provinces in which police told us that the Crown screens their recommendations to charge - Quebec and British Columbia - also have the lowest recorded rates of charging of apprehended youth in the country. This seems unlikely to be a coincidence. Many officers in British Columbia[1] - told us that they find the system of Crown screening of their recommendations to charge so frustrating that they prefer, wherever possible, to use informal action or pre-charge diversion (not Alternative Measures). The rather perverse implication of this is that one way to reduce the use by police of formal charges is to make the procedure frustrating so that they avoid using it.

Concerning organizational influences on the use of police discretion with youth, our findings suggest that police services which want to increase their use of informal action and of pre-charge diversion, and to reduce the use of intrusive methods of compelling appearance, might consider any of the following measures: wholehearted adoption of the community policing model, in all its dimensions, including a fundamental organizational redesign and philosophical reorientation, the allocation of significant resources to community policing, increased involvement in crime prevention programs, especially in high-crime communities, and the adoption of the POP model by all ranks; creation of a youth squad, or at least one or more officers who specialize in youth crime; adoption of explicit policies and protocols for handling youth crime and young offenders; provision of training in handling youth crime to all front-line officers, and then allowing them to have autonomy in deciding how to dispose of youth-related incidents; assigning investigative and enforcement functions to SLO's who currently are limited to making presentations in schools; increasing the use of proactive policing; and decentralizing decision-making in the organization.

Many police managers are perfectly aware of the value of a youth squad, enforcement SLO's, etc., and many police services used to have youth squads, but they were abandoned under the pressure of financial stringency during the 1990's. The core activities of the police, in the view of most police officers and most members of the public, are routine patrol, and responding to calls for service, i.e. reports by the public of a crime. Therefore, if the various organizational innovations detailed above are to be adopted, a police service must not only receive funding for that innovation, but it must also be assured of an adequate base budget - because if the base budget for traditional policing functions which are expected by the public is inadequate, then inevitably ways will be found to divert the funds for innovation to what are seen by all as core activities.

Our analysis of situational factors in police decision-making has at least one implication for the implementation of the YCJA. This concerns the paramount importance to police of the record of the youth's previous apprehensions, whether or not they resulted in a charge or a conviction. If one aspect of the implementation of the YCJA is going to be a significant improvement in the recording of informal action, in order to track its use and effectiveness, this may well have the effect of increasing the information available to police on a youth's previous criminal activity - and this may result in an increase in charging.

We suggest several research initiatives which are complementary to the present research: an impact evaluation of the YCJA which collects comparable data in a few years time, and analyzes any changes that have taken place; a baseline file study of police discretion under the YOA, which collects quantitative data on various aspects of police discretion, such as informal warnings, formal warnings, arrest, etc.; an in-depth study of police services which exemplify "best practices" with youth; a study of the processing of administrative offences under the YCJA; and improvement of the UCR2 Survey as a tool for monitoring the implementation and impact of the YCJA, by increasing its coverage and improving the integrity of its key indicators of police discretion.