The persistence of status offences in the youth justice system.

AuthorSprott, Jane B.

Under Canada's first piece of federal legislation, the Juvenile Delinquents Act (JDA), the offence of "delinquency" covered not only regular violent, property, and drug offences but also encompassed provincial and municipal by-laws and status offences--offences that would not be criminal if committed by an adult (s 2(g)). "Incorrigibility" and "sexual immorality or similar forms of vice" were the main status offences under the JDA, although this last category of offences was not added until 1924 (Sprott and Doob 2009). Not surprisingly, girls, more so than boys, were seen as needing "treatment" or "rehabilitation" for offences like sexual immorality. Thus, a disproportionate number of girls were brought into the system and sentenced to custody for non-criminal or status offences (Sprott and Doob 2009).

When the JDA was replaced by the Young Offenders Act (YOA) in 1984, provincial and municipal by-laws and status offences were officially removed from the jurisdiction of the youth court. One might think, then, that the status offence story ended in 1984. This is not the case. In 1986, a new offence2 under the YOA was created--failure to comply with a disposition (FTCwD) (typically probation conditions). This new offence was described as being justified because it would "streamline" the procedure, allowing the police to respond quickly to violations as opposed to waiting for a judge to review the initial disposition (see, e.g., Sprott and Doob 2009: 89). Thus, from 1987 onward, when a youth breached a condition of probation (e.g., curfew, attending school, obeying one's guardian), the youth could be charged with a new offence--FTCwD--and sentenced for that offence.

Interestingly, there was no debate in Parliament about this amendment (Sprott and Doob 2009). There were, for example, no discussions about how this provision might be implemented with respect to girls and whether it was, in effect, allowing status offences back into the jurisdiction of the court. However, after the amendment was passed and implemented, concerns over bringing youths into youth court for this new offence were soon expressed. While youth court data for all of Canada were not available until 1991/92, almost immediately there was evidence from various jurisdictions of increasing numbers of charges for administration of justice offences, including FTCwD (Reitsma-Street 1993). There was also some early evidence from various jurisdictions of a relatively high use of custody for administration of justice offences (e.g., Doob and Meen 1993). As data became available for all of Canada, concerns grew as it became clear that there had been considerable increases in the rate of bringing FTCwD cases into court and sentencing them to custody (Sprott 2006; Sprott and Doob 2009). The relatively high use of custody was also perplexing since studies from various jurisdictions started to reveal that the most common convictions for FTCwD involved curfew violations, "failing to keep the peace and be of good behaviour," and "failing to obey the rules and discipline of the home" (Pulis 2007; Moyer and Basic 2004). This fuelled concerns that FTCwD was simply a status offence in disguise. Moreover, reminiscent of the JDA, these cases became a larger part of girls' youth court and custody caseload than of boys'.

Such concerns around the increasing rates of bringing FTCwD cases into youth court and sentencing them to custody helped to shape sections of the Youth Criminal Justice Act (YCJA), especially with respect to the use of custody (Bamhorst 2004; in press). As many have pointed out, the main focus of the YCJA was to reduce the use of court and custody for minor offences (see Bala, Carrington, and Roberts 2009; Barnhorst 2004; Doob and Sprott 2004 for a detailed discussion of the Act). Most observers consider one of the minor offences to be FTCwD, since those behaviours do not constitute criminal behaviours, except for the fact that they are listed in a probation order (see, for example, Carrington and Schulenberg 2008; Pulis 2007; Sprott 2006). Bail conditions, one could argue, are similar, though issues around the conditions of release did not appear to be particularly salient during the drafting of the Act. The focus appeared to be concentrated on removing minor offences, including FTCwD, from court and especially custody. When pre-trial issues were considered, the focus tended to be on the use of detention (Barnhorst 2004), rather than conditions of release. The similarity between failing to comply with bail conditions and FTCwD--in particular, the potentially similar problems with both offences--appeared not to be given much, if any, consideration.

Overall the YCJA seems to be quite successful in removing minor offences from formal youth court processing. Whether looking at police charging, guilty findings in court or the use of custody, there have been considerable reductions in the number (or rate) of minor cases (Carrington and Schulenberg 2008; Bala, Carrington, and Roberts 2009). However, this article argues that Canada continues to struggle with keeping status-type offences (e.g., failing to comply with bail or probation conditions) out of the youth justice system. These types of offences appear to need legislative change to reduce their rates, and, indeed, the greatest sustained reductions have been seen in the areas of the YCJA that are specific and leave little ambiguity. The more open areas of the Act have, on the other hand, allowed for increases with respect to these types of offences. Before examining the trends with respect to failing to comply offences, the issue of whether changes in the administration of law precede or follow legislative change deserves further discussion.

Do changes in the operation of the youth justice system precede or follow legislative change?

Though it is tempting--and analytically simple--to assume that changes in the operation of the youth justice system are the consequence of new laws being enacted, this is not always the case. Changes in the administration of law can occur before formal legislative changes. Looking, for example, at trends in the rate of sending two status offences (sexual immorality and incorrigibility) to youth court and sentencing them to custody under the JDA reveal different patterns. It appears that criminalizing the sexual behaviour of youths (e.g., "sexual immorality or similar form of vice") was falling out of favour decades before the Parliament of Canada got around to changing the law (Sprott and Doob 2009). Specifically, by the end of the 1960s, approximately 15 years before the law removed "sexual immorality" as a criminal offence for youths, judges, in particular, but the youth justice system more generally, had shown a rather dramatic movement away from seeing the youth (criminal) justice system as a way of dealing with "sexual immorality." The reductions in bringing sexual immorality cases to court appeared to be wholly a function of official discretion, and it appeared to be incremental over time, rather than a sudden drop that legislative change might produce. Incorrigibility, on the other hand, was much more stable during that same period. It appears to have taken legislative change to effect change with respect to incorrigibility.

To the extent that attitudes are changing--either with respect to specific types of status offences or the use of youth court more generally--change in the administration of law may precede, rather than follow, formal legal changes. In addition, the process of legislative change--the discussions, debates, and education--may result in changes in the administration of law before legislation is actually implemented. Moreover, there may be differences in administration among the various criminal justice agencies (e.g., police vs. courts). For example, while declines in the number of sexual immorality cases in youth court were seen, by far the most substantial declines were seen later in the process, with findings of guilt and sentencing to custody (i.e., judicial behaviour).

Examining whether changes in the operation of the youth justice system precede or follow legislative change provides insight into how appropriate the system is seen to be as a response to certain types of behaviours. It is argued here that there is still a strong desire to respond to status-type offences through formal youth court processing. Indeed, while there were declines seen in the rate of charging or finding cases guilty in youth court for almost all offences before the YCJA came into effect in 2003, this was not the case for status-type offences. To illustrate these trends, both police charging and youth court processing (guilty cases and sentencing to custody) will be examined. Specifically, trends with two status-type offences--failing to comply with bail conditions and FTCwD--will be presented. As a comparison, trends with minor assaults and minor property crimes (mischief, thefts, and possession of stolen property) will also be presented. These offences were chosen as comparators because those types of offences were relatively high volume under the YOA and were clearly targeted by the YCJA for removal from court and custody since they involved less serious offending. However, several different minor offences (3) were examined--all of which generally produced the same patterns shown here. After examining youth justice processing of these offences, bail conditions will be considered in more depth.

Trends in police charging

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