The use of custody for failing to comply with a disposition cases under the Young Offenders Act.

• Author: Sprott, Jane B.
• Position: Canada

When the Young Offenders Act (YOA) came into force in 1984, a young person who breached a condition of a probation order could be brought back into court and re-sentenced for the original offence. However, three years later the YOA was amended and a new offence--failure to comply with a disposition--was introduced. This offence was created because officials apparently felt that they did not have sufficient tools to make young offenders comply with dispositions (Reitsma-Street 1993). Thus, from 1987 onward, when a youth breached a condition of probation, the youth could be charged with a new offence: "failing to comply with a disposition," and sentenced for that. 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 1991/1992, there was evidence from various jurisdictions of increasing numbers of charges for administration of justice offences like failing to comply with a disposition (Reitsma-Street 1993). There was also evidence from several jurisdictions of a relatively high use of custody for administration of justice offences (Doob and Meen 1993).

Throughout the 1990s there were increases in the proportion of cases in youth court that have, as the most significant charge, (1) a "YOA offence" (predominately failure to comply with a disposition). For example, in 1992/1993 these cases accounted for roughly 8 percent of the youth court caseload. By 2002/2003 they were accounting for 12 percent (Thomas 2003; Robinson 2004). Independent of the increasing portion of the youth court caseload that these YOA offences constituted, there was also an increasing tendency for these cases to result in a custodial sentence. Figure 1 shows the percentage of cases (found guilty) that received custody in each of the five offence categories (violence, property, drugs, YOA, and other CC). One can see that the YOA offences consistently had the largest proportion sentenced to custody.

[FIGURE 1 OMITTED]

Clearly, under the YOA, there appeared to be a relatively high use of custody for behaviour that would not have been considered "criminal" for a youth without a court order. In that sense, youths were being placed in custody for behaviour that normally would not warrant state intervention of any kind. For example, in a small sample of cases from an Ontario courthouse, Pulis (2003) found that the most common convictions for failing to comply involved "failing to keep the peace," failing to "obey the rules and discipline of the home or approved facility," and failing to "reside at an address approved by a youth worker." It is therefore somewhat curious that custody is used so often. It may be that violating a condition of probation is seen as exceptionally serious--at least symbolically--since it perhaps shows disrespect for the justice system. It could also be felt that a term of custody is the only way in which to reinforce the importance of abiding by conditions in the community. It thus may speak to judges trying to maintain the credibility of community-based punishments.

It could also be that the nature of these cases affects the sentence. (2) For example, it may that these sorts of cases have long criminal histories and thus because of the criminal record there is a high use of custody. Hence cases involving minor transgressions could result in severe sentences solely on the basis of criminal record. There also could be an independent effect of the previous sentence. Previous research has revealed that past sentences can have stronger effects on current sentences than the nature of the prior convictions (Matarazzo, Carrington, and Hiscott 2001). Finally, it could be that these cases involve a number of other offences in addition to failing to comply. Under the YOA, there was no explicit "proportionality" requirement in sentencing. However, a 1993 Supreme Court decision in R. vs. M. (J.J.) stated that although this principle may not carry the same weight as it does with adults, it was nonetheless part of the sentencing process for youths. Thus, it may be that other offences within the FTC cases are responsible for the high use of custody.

This paper aims to explore the effect of these sorts of case characteristics on the sentencing of "failing to comply" cases in order to help explain the relatively high use of custody. Using longitudinal youth court data (under the YOA), all cases that were disposed of in 2002/2003 with a conviction (or convictions) for failing to comply with a disposition were identified. Previous convictions and sentences were then identified. A brief description of what these failing to comply cases look like (e.g., types of convictions within the cases and criminal history) will first be provided, followed by an exploration of the effect previous convictions/sentences have on the current sentence for the failing to comply conviction.

Method

All cases (3) in Canada (4) that were disposed of in 2002/2003 and had a conviction (or convictions) for "failing to comply with a disposition" (s. 26, YOA) were identified. For youths with more than one distinct case having a conviction on a failing to comply charge within 2002/ 2003, the final such case was selected, based on the date of the sentence ("case end-date"). (5) Once all unique cases with conviction(s) for failing to comply were identified, their previous convictions and sentences were gathered. Specifically, failure to comply cases disposed of in 2002/2003 were linked to previous years by matching on province/ territory of sentence; accused identifier; sex of accused; and birthdate of accused. However, not all persons with a conviction for failing...