Factors influencing police attitudes towards extrajudicial measures under the Youth Criminal Justice Act.

• Author: Marinos, Voula
• Position: Canada

Introduction

The principle of screening cases by police and diverting them from court is an important one in Canadian youth justice history. Since a separate system of justice was first established for youth in this country, it has been acknowledged that non-serious youthful offenders, particularly first-time offenders, need to be treated differently from--and more informally than--serious offenders. The Juvenile Delinquents Act (1908-1984) did not include diversion provisions per se, but the practice of police officers warning youth and releasing them was common (Bala 2003: 273). Under the Young Offenders Act (YOA) (1984-2003), diversion was partially codified. "Alternative Measures" (section 4) were available generally for youths who committed non-serious offences. Although youths with past police contact were eligible for alternative measures, such measures were imposed primarily, although not exclusively, for those who did not have an offending record. (2) In all provinces and territories except Ontario and the Yukon, police could divert youth pre-charge (Kowalski 1999: 3 at footnote 2).

One shortcoming of the diversion legislation under the YOA was the relative lack of structured guidance to key decision-makers like police and Crown prosecutors (Bala 2003: 273). Diversion was constructed with relatively non-specific criteria for consideration of "protection of the public," "needs of the young person," and "least interference" (section 3(1)(f)). (3) On the whole, evidence showed that alternative measures were underused and inconsistently applied across different provinces, and there were claims that net-widening occurred in some provinces (Bala 2003: 277). A fundamental feature of the current Youth Criminal Justice Act (YCJA) (2003) is the emphasis on diversions--with specific principles, criteria, and prohibitions--now called extrajudicial measures and extrajudicial sanctions. Diversion is more structured and specific under the YCJA, compared to the YOA.

Section 4 of the YCJA sets out the specific guiding principles underlying extrajudicial measures:

a. extrajudicial measures are often the most appropriate and effective way to address youth crime;

b. extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour;

c. extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and

d. extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who

i. has previously been dealt with by the use of extrajudicial measures, or

ii. has previously been found guilty of an offence.

Section 4 clearly states that extrajuducial measures are appropriate, effective, and timely. Many youth can be held accountable for their actions specifically through the use of different extrajudicial responses by the police pre-charge: take no further action, warning, caution, and referral to community-based agencies. A police officer can decide to take no further action with a young person as contact with police alone, in some circumstances, may be sufficient in holding the young person accountable. The measures are explicitly structured so that youth, regardless of whether they have been through the formal system in the past, can be held accountable through non-court alternatives for their current offence(s). If the young person cannot be dealt with adequately with a measure and police lay a charge, then a Crown prosecutor also has an opportunity to divert the young person from the formal court process by referring a young person to an extrajudicial sanction program (s. 10(1)). Therefore an extrajudicial sanction is one type of extrajudicial measure but at the post-charge stage.

Section 5 of the YCJA sets out the specific objectives of extrajudicial measures:

5. Extrajudicial measures should be designed to

a. provide an effective and timely response to offending behaviour outside the bounds of judicial measures;

b. encourage young persons to acknowledge and repair the harm caused to the victim and the community;

c. encourage families of young persons--including extended familles where appropriate--and the community to become involved in the design and implementation of those measures;

d. provide an opportunity for victims to participate in decisions related to the measures selected and to receive reparation; and

e. respect the rights and freedoms of young persons and be proportionate to the seriousness of the offence.

Therefore extrajudicial measures have been carefully crafted to enable the wide use of diversion to accomplish a variety of objectives.

Police attitudes and extrajudicial measures

The purpose of this study was to understand the factors that affect police attitudes towards a decision to divert or charge, particularly for minor offences that are most likely to be diverted. Given the emphasis on accountability within the limits of proportionality (s. 3(1)(b)(ii); Barnhorst 2004: 234), the current offence--rather than any past offence(s)--should drive a police officer's consideration of extrajudicial measures. But the "failure of a police officer to consider these options does not make any subsequent charges against the young person for the offence invalid" (s. 6(2)). Therefore police have considerable discretion and a Crown prosecutor can offer a youth extrajudicial sanctions if she or he feels the case is appropriate for diversion.

The YCJA is clear that past offending behaviour should not rule out an officer's decision to impose an extrajudicial measure (s. 4(d)(i) & (ii)). But as Barnhorst points out,

This principle [section 4(d)] is intended to counter the tendency under the YOA to restrict alternative measures to youths who had no youth court record and no previous involvement with alternative measures. Under the YCJA, the commission of another offence after being found guilty or dealt with by extrajudicial measures does not mean that the previous responses were a failure or that an extrajudicial measure would not be adequate to hold the youth accountable for the current offence. Parliament's implicit message to police and prosecutors is that less serious offences are still less serious even though the youth has committed previous offences, and that it is likely that an extrajudicial measure would be adequate to hold her/him accountable. (emphasis added) (236-7) It is clear that the extrajudicial measures under the YCJA are premised on the idea that youth can be held accountable through various forms of diversion, even if the youth has received extrajudicial measures in the past or has a record of offending. This requires police to shift their thinking from the YOA, when there was a tendency, in practice, not to offer alternative measures if there was past involvement with the police (Bala 2004: 273). Clearly there are different approaches to responding to youth crime, and the YCJA emphasizes the principle of accountability for present offences.

The overriding principles of accountability for the young person's offence and proportionality (ss. 4(c) & (d)) suggest that same offences should be treated relatively alike. At the same time, the discretion that is built into the YCJA allows police and Crown prosecutors to make decisions based upon the young person's circumstances, such as prior offences, aggravating circumstances relating to the offence, young person's attitude/responsibility, age, and others. Variability should be expected, to some extent, in how young people are dealt with under the YCJA, but the legislation is clear and direct on when youth ought to be considered for diversion through extrajudicial measures.

Research that asks police about their attitudes and decisions to divert or charge has shown that, in general, the seriousness of the offence, the youth's prior contacts with police, and youth's attitude are the most influential factors (Doob and Chan 1982; Doob and Cesaroni 2004; Carrington 1998). Most recently, Carrington and Schulenberg (2005) reported that 96% of the police officers they surveyed stated that past record is a major factor (87%) in their decision making under the YOA, and that prior record is as important as seriousness of the offence (165-166). It is unclear from their research whether past "record" (finding of guilt) or knowledge that a youth was warned, for instance, is considered prejudicial in their attitude towards offering another extrajudicial measure (see also Bell 2007: 218-219).

Successful implementation of the YCJA requires a new orientation to youth in conflict with the law. Although diversion has always been part of youth justice, it is important to know what factors impede...