Police Discretion with Young Offenders

II.  A Descriptive Profile

5.0  Discretion with offences against the administration of justice

The great majority of offences against the administration of justice by young offenders are failure to appear for court and breach of probation (usually prosecuted as the offence under the YOA of "failure to comply with a disposition"), but this category also includes violations of bail conditions (both JIR and OIC undertakings), escaping from a facility ("escape custody"), or leaving a facility without permission ("unlawfully at large", or, colloquially, "going AWOL"), and rare instances of other offences.

Offences against the administration of justice differ from other offences in that

  • (i) they rarely involve harm to a victim, other than to the justice system itself;
  • (ii) they do not involve behaviour that is popularly considered "criminal": rather they involve disobeying orders of the court or other system actors;
  • (iii) they can be committed only after a another offence has already been committed, or alleged; i.e. they are "secondary" offences; for this reason, they are particularly at risk of contributing to the "revolving door" syndrome.

There has been a very large increase in the reported incidence of offences against the administration of justice by young persons since the inception of the YOA. Since very high proportions of these offences are subject to charging, prosecution, conviction, and custodial dispositions, the increase in their reported incidence has resulted in their becoming a substantial and growing proportion of the caseloads of police, prosecution, youth courts, and custodial facilities - a development viewed with alarm by some commentators (Bell, 2002; Schissel, 1987; Task Force, 1996).

Per capita rates of young persons apprehended for offences against the administration of justice, which were declining under the Juvenile Delinquents Act, have climbed very rapidly under the YOA from 115 per 100,000 youth population in 1984 to 734 in 2000 (Figure II.14) [15]. Rates of young persons charged have followed this trend closely, since approximately 90% of these offences result in charges being laid: that is, they are subject to lower levels of police discretion than any other type of offence except murder (Carrington 1998a). As indexed by the proportion of apprehended young persons charged, the non-use of police discretion with administration of justice offences leapt from about 40% in 1980 to almost 80% in 1985, and stabilized at about 90% in the 1990's (Figure II.15).

Figure II.14 Rates of young persons apprehended and charged for offences against the administration of justice, Canada, 1977-2000

Figure II.14 - Rates of young persons apprehended and charged for offences against the administration of justice, Canada, 1977-2000

Description

Source: UCR Survey; see note 15.

Figure II.15 Proportion of young persons apprehended for offences against the administration of justice who were charged, Canada, 1977-2000

Figure II.15 - Proportion of young persons apprehended for offences against the administration of justice who were charged, Canada, 1977-2000

Description

Source: UCR Survey; see note 15 above.

Figure II.16 Rates of young persons apprehended for common offences against the administration of justice, Canada, 1977-2000

Figure II.16 - Rates of young persons apprehended for common offences against the administration of justice, Canada, 1977-2000

Description

Source: UCR Survey; see note 13 above.

About 90% of offences against the administration of justice committed by young persons are bail violations and failures to appear for court, and breaches of probation conditions (which is usually charged under S. 26 of the YOA, failure to comply with disposition, rather than under S. 733.1 the Criminal Code, failure to comply with a probation order). Both offences have increased sharply under the YOA, but the increase in bail violations and failures to appear has been most spectacular, from 20 juveniles per 100,000 in 1983 to 412 per 100,000 in 2000 (Figure II.16). In 2000, over 9,000 young persons were charged with bail violations or fail to appear, and more than 4,800 were charged with failure to comply with a disposition. Altogether, approximately 16,000 young persons were charged with offences against the administration of justice in 2000: they made up approximately 16% of youth charged for all crimes.

Per capita rates of young persons appearing in youth court for offences against the administration of justice almost doubled between 1987 and 1992, and increased steadily after that (Bell, 2002: 89). By fiscal 1999/2000, cases in which the most serious charge was an offence against the administration of justice accounted for 27% of all youth court cases in Canada (Canadian Centre for Justice Statistics, 2001b: Table 3). Because of high rates of conviction and of custodial dispositions for these offences, they also accounted for a very high proportion of custodial sentences: 40% of custodial dispositions in youth court in fiscal 1999/2000 were for cases in which the most significant charge was an offence against the administration of justice - whereas, only 18% of custodial dispositions handed down in 1999/2000 were for cases involving violent offences (Canadian Centre for Justice Statistics, 2001b: Table 8).

However, to our knowledge, there is almost no published Canadian research on the processes generating these remarkable and alarming numbers (the few extant studies are reviewed below). Accordingly, we made a point of asking police about the processes by which they became aware of this type of offence, to what extent and in what circumstances they exercised their discretion not to lay charges, and what kinds of considerations affected their decision-making.

Officers become aware of administration of justice offences in one of three ways:

  • the police service is notified by another system agent; typically, when a youth fails to appear for court and the judge issues a bench warrant, or when the probation service notifies the police of a breach of probation or community service order, or when an open or secure custodial facility in the area notifies police of an escape or a resident "going AWOL"; in the case of fail to appear, the charge (i.e. the information) is often laid by an officer assigned to this and other administrative duties, or by the Court Liaison Officer, if there is one;
  • a police officer apprehends a youth for another offence and learns of an outstanding bench warrant, bail violation, breach of probation condition, etc., through a records check;
  • a police officer discovers a violation of a condition of bail or probation in the course of a proactive sweep for such offences, e.g. curfew violations discovered during curfew checks done as part of a monitoring program such as SHOP (Serious Habitual Offender Program) or SHOCAP (Serious Habitual Offender Comprehensive Action Program) (see below).

Why, then, are so few cases of offences against the administration of justice dealt with informally or diverted by police? On the face of it, they would appear to be excellent candidates for informal action or diversion, since they are not indictable offences (fail to comply with a disposition is a summary offence; fail to appear is a hybrid offence), and involve no harm to a victim.

In interviews, we were told that officers are much less likely to use their discretion not to charge when they are notified of the offence by a system agent, because the notification is understood as, in effect, a request to charge. This is often explicit when a request comes from a probation officer or official of a custodial facility. However, we were unable to determine precisely the process by which the failure of a youth to appear in court, and subsequent issuance of a warrant to arrest ("bench warrant") on the original charge by the judge, leads to the police laying a fresh charge of failure to appear. Typically this charge is laid as a matter of course by the court liaison officer, after being informed by a court clerk of the issuance of the bench warrant; or the court liaison officer may be present in court when the warrant is issued. The few court liaison officers with whom we discussed this process treated it as one in which police discretion was inapplicable, since, in their view, the judge had indicated that s/he wanted the charge laid, and they would not want to disappoint or disagree with a judge. It is unclear to us whether judges actually communicate such a wish, explicitly or implicitly, or whether this is an unwarranted assumption on the part of police. If judges are indeed initiating the laying of charges by police, is this an appropriate activity for them to be performing in their judicial role? Since charges of failure to appear constitute a substantial proportion of all administrative offences, it would be worthwhile to investigate this process more closely than we were able to do.

A second factor that appears to play a large role in the decision whether to charge is whether the youth is a "known" repeat offender. Many officers told us about youths apprehended for bail or probation violations who were simultaneously on bail and/or probation orders in multiple cases. In these fairly common cases, laying a charge for a bail or probation violation is seen as a response not just to the particular violation, but to a pattern of flagrant disregard for the orders of the justice system.

A factor that can mitigate against laying charges might be described as "absence of wilfulness": just the opposite of the wilful disregard described above. This appears to be more prevalent in rural/small town jurisdictions. As one officer described it:

You have to go back to the socio-economic description of the citizenry, there's an awful lot, quite a few who aren't very educated and quite a few that I've come across, an inordinate amount, that are absolutely illiterate and have no clue of what a promise to appear says. You just about have to stick it on a post and whack it on their forehead if you've got a court date that's coming Friday, you write it and stick it on their forehead, and then they'll be there. So when it comes to reading a probation order, you watch these people when they sit in court [] and he hasn't got a clue what the guy [judge] is talking about. And then it gets explained to him afterwards, he signs it all up, yeah, no problem and then you catch them out after 7 o'clock at night [ they tell you] I didn't know that. In their mind they didn't. So in those kinds of cases you might cut him a bit of slack.

We asked officers to describe in detail the factors which influence their use of discretion with offences against the administration of justice. Figure II.17 outlines the responses (percentages add to more than 100% since multiple answers were permitted).

Figure II.17 Discretion with Administration of Justice Incidents

Figure II.7 - Discretion with Administration of Justice Incidents

Description

One-third (33%) reported that they use no discretion at any time with offences against the administration of justice. When probed for further clarification, three distinct themes emerged. First, the officers reported that there was either departmental policy [16]or an understanding within the department that no discretion should be used with these types of offences. Second, officers reported feeling uncomfortable using their discretion when a judge has ordered this young person to adhere to conditions. The fact that the young person is in breach is seen by the officer as evidence of a lack of respect for the criminal justice system. Officers who fell in this category generally told us that these young persons are not new to law-breaking and they had already been "given a break" by receiving conditions. In several instances, officers reported young persons laughing because "probation means nothing to them". Finally, some felt that the youth justice system provides so few consequences for a young person's behaviour that to "give them a break" would further enforce this perception.

Approximately one-quarter (24%) of our interviewees indicated that if they found out about the administration of justice offence from another system agent they would not exercise their discretion. Officers who indicated they use no discretion when reported to them by system agents were more likely to work in metropolitan police forces (37%), compared to only 21% of respondents in suburban/exurban areas and 18% of respondents in rural/small town jurisdictions. They are also more likely to work in the Prairie provinces (53%) or the Atlantic region (55%). Finally, officers with 5 or less years of experience were much more likely to say they would not exercise discretion with cases referred by other system agents (36%) than officers with 6 or more years experience (10%).

Almost two-thirds of the interviewees (62%) responded that their exercise of discretion in cases of offences against the administration of justice is case-specific. When asked to clarify, responses ranged from the circumstances of the offence to characteristics of the young person. For example, if the offence against the administration of justice was committed at the same time as another offence they would probably charge the young person. Or, if they looked on their records management system (RMS) and saw that the young person had been "given a break" already, they would proceed by way of charge. Conversely, if a records check showed the young person did not have a lengthy prior record, they might consider using informal action. On the other hand, if the breach is serious or the young person has a lengthy record, officers suggest they are more inclined to proceed by way of charge and arrest the young person. Respondents' answers also differed by type of police force, province, and whether they police aboriginal persons. 87% of respondents from provincial police forces (including RCMP and OPP) would view each incident on a case-by-case basis, compared to 47% of the independent municipal police agencies surveyed. 100% of the detachments interviewed in the Territories and 87% of the agencies in Ontario indicated they use their discretion differently, depending on the unique circumstances of each case. Finally, 78% of those agencies that police on or off reserve aboriginals said that they use their discretion on a case-by-case basis, compared to 51% of those agencies that do not police aboriginals.

Almost half (45%) of the officers told us that they use their discretion not to charge when the incident involves a minor breach of release conditions or probation. For example, if a young person has a curfew of 10:00 pm and was found on his or her way home at 10:15, the likelihood of charges being laid would be low. Or, if there is a condition not to consume alcohol and the young person had had a few drinks, but was clearly not intoxicated, the officer would also consider using informal action. If the condition was not to associate with certain individuals and it was conceivable that the young person, although associating, did not intend to breach that condition, the officers might exercise discretion. However, several officers indicated when a young person has a lengthy record or has committed another offence (in conjunction with even a minor breach) they will more than likely charge the young person. Certain types of police agencies were more likely to say they would not charge in the case of a minor breach. 74% of provincial police agencies (including RCMP and OPP) indicated they would use their discretion with a minor breach compared to only 27% of independent municipal forces. 89% of the detachments interviewed in the Territories indicated that discretion is used with minor breaches. 63% of the police agencies that police on or off reserve aboriginals indicated they used discretion with minor breaches.

Officers volunteered several other circumstances under which they exercise their discretion not to charge with offences against the administration of justice. 17% of those interviewed stated they used their discretion to build rapport: that is, by not charging when they clearly could have, they sought to build a good relationship with the youth. These agencies differed by type of policing, type of community, province, and whether they police aboriginal peoples. Of the provincial police detachments, 29% used discretion to build rapport, compared to 9% of independent municipal police forces. 23% of police forces located in rural areas or small towns mentioned rapport-building, compared to 12% located in metropolitan or suburban areas. 44% of the detachments interviewed in the Territories indicated that they used discretion to build rapport. Finally, of those agencies that police aboriginal peoples 28% indicated rapport as a reason for discretion compared to 9% of those that do not police an aboriginal population.

Several police agencies we interviewed run special programs which intensively monitor high risk youth (e.g. SHOP - Serious Habitual Offender Program and SHOCAP - Serious Habitual Offender Comprehensive Action Program). Other police agencies (e.g. Guelph Police Service) do not have an official SHOP or SHOCAP program, but officers - usually specialist youth officers - do the sort of intensive monitoring of high-risk offenders that characterizes these programs. Officers indicated that if the offence involved a youth in one of these specialized programs they would consider using discretion. During ride-alongs with officers involved in these programs, we observed that they would routinely find youth not at home in violation of their bail or probation curfew condition. They would then make a note of the violation, leave their card with a parent or other resident, ask them to tell the youth to call the officer "as soon as s/he gets in", and take no further action. Thus, by proactively detecting, but not acting on, large numbers of violations of bail or probation conditions, they were able to remind the youth that s/he was being monitored, but also to "build rapport" by repeatedly giving the youth "a break".

These monitoring programs tend to be run within independent municipal police forces (of which 16% said that they run such a program) and they tend to be located in metropolitan (20%) or suburban/exurban areas (16%). Only 2% of the agencies located in rural/small town agencies had a program of this type in effect. Officers indicated that a lack of resources is the most salient factor in determining the programs they are able to provide.

9% of officers indicated that they used their discretion to avoid the 'revolving door' syndrome, 6% responded that they used discretion to avoid institutionalization of the youth and another 9% used their discretion because there was no point in processing the charge (e.g. because it would always be pled away) or it was too much work. On the whole, there were no variations in these responses by type of police force, type of community, officer characteristics or province/territory. However, those that policed an aboriginal population were four times more likely to use their discretion to avoid the 'revolving door' syndrome. Some such officers claimed that charging youth for administration of justice offences did "absolutely no good." As one officer put it, the original offence which the youth committed might be a minor mischief, theft, or minor offence against the person, and the rest of his record is filled with 8 or 10 breaches of probation. Further, detaining youth for multiple breaches can institutionalize them. An officer explained it thus:

We try to work it out and inform, explain the whole thing, just tell them the whole process. Because once [they're] in a jail setting they start to network. So now you've introduced this really young, impressionable individual to a new culture and wham-o. Guess what!

Many officers argued that charging youth for administration of justice offences is simply sending them through a revolving door without addressing the initial problem that brought the youth to police attention. An officer in British Columbia summarized "the door" thus:

So you arrest him, take him back to the institution or the youth detention centre, and they network in there. You write a really fancy report. So now you get a new separate charge for breaching conditions, so now you've got the original charge, new charges, revolving doors. You can see our frustration, come on [] there must be a better way.

Some officers expressed considerable frustration concerning the processing of offences against the administration of justice by Crowns and youth court. Many officers working in metropolitan areas told us that in order for a charge to stand up in court they had to show a pattern of wilful disregard for the order. In British Columbia, one officer summed it up by saying, "quite often, just because we find a kid out past their curfew, in their no-go, doesn't mean the JP [Justice of the Peace] is going to approve the charge, they're going to want to see a pattern of this misbehaviour, so quite often it's a waste of energy". Of those officers with 6 or more years experience, 8% responded in this manner compared to none of the officers with 5 years or less experience. One officer summarized the sentiment of too much work as follows: "Take into consideration that you work an 11 hour shift, spend 4 hours at the hospital, spend 2 hours doing paperwork, and one kid just tied you up for half your shift, and where are the rest of your service calls?" The paperwork involved for processing a charge against the administration of justice is exactly the same as any other Criminal Code offence and these officers suggested that they used their discretion not to charge, in order to concentrate on what they saw as more important and productive cases.

In summary, the volume of youth-related cases of breach of conditions of bail or probation, and failure to appear in court, has grown to alarming proportions. In the year 2000, offences against the administration of justice accounted for 16% of all youth charged. In fiscal 1999/2000, 27% of all Youth Court cases, and 40% of all custodial dispositions were in relation to offences against the administration of justice.

The police see themselves as playing only a limited role in this phenomenon because they feel that they have very little discretion in these cases. When an allegation that a youth has committed an offence against the administration of justice is made by another system agent - e.g. a bench warrant is issued by a judge for failure to appear, or a breach of probation is reported by a probation officer - police interpret this as a request to charge, and generally feel that they have little choice but to comply. On the other hand, when they discover a breach as a result of apprehending for another offence, or as part of an intensive monitoring program for high-risk youth, they exercise a great deal of discretion. When police do lay a charge in these circumstances, it is usually because there is some aggravating circumstances: the substantive offence is serious, or the youth is a known repeat offender, or is simultaneously involved in several cases, and violations of court orders.


  • [15] The UCR Survey does not distinguish between offences under the YOA and offences under miscellaneous federal statutes, such as the Bankruptcy Act, the Income Tax Act, etc. However, almost all young persons apprehended and charged since 1984 under the UCR category "Other Federal Statutes" were in fact implicated in the offence under the YOA of "failure to comply with a disposition". According to Canadian Centre for Justice Statistics (2003), approximately 93% of young persons recorded in the 2001 UCR as charged under "Other Federal Statutes" were charged with an offence under the YOA - and, according to the Youth Court Survey, 98% of cases of offences under the YOA heard in Youth Court in 1999/2000 were failure to comply with a disposition under the YOA (Canadian Centre for Justice Statistics, 2001b). Therefore, in computing rates of young persons apprehended and charged from 1984-2000 for Figures II.14 and II. 16, we have used 93% of the total number of young persons apprehended and charged for "Other Federal Statute" offences as an estimate of the number apprehended and charged with administration of justice offences under the YOA. For 1977-1983, we have used the total number of young persons apprehended and charged in the UCR category 'offences under the Juvenile Delinquents Act' as an estimate of breaches of probation under the JDA.
  • [16] Despite officers indicating the existence of departmental policy, we did not find any specific directives within the documentation collected which instructs officers to use "no discretion" with administration of justice offences.

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