Crown Decision-Making Under the Youth Criminal Justice Act
In s. 4(8), the Extrajudicial Measures section of the Act states that prosecutors can administer cautions to young persons instead of starting or continuing judicial proceedings. As is the case for police warnings and cautions, prosecutorial cautions cannot be introduced in subsequent proceedings against the youth (s. 4(9)). Section 8 states that provincial governments can implement programs for prosecutorial cautions.
The Saskatchewan government decided against introducing a Crown caution program under s.8
“at this time” (Saskatchewan Justice, 2003: 14). In British Columbia, the Attorney General has not designated a Crown caution program but there is a long established non-designated program that is covered by formal Crown policy. That is, Crown counsel are instructed to continue the practice of utilising prosecutorial discretion regarding caution letters to the parent/guardian of young persons alleged to have committed a criminal offence. No Crown caution letters were observed during this research.
Section 23 of the Act allows the provinces to establish programs for Crown screening before charges are laid. The young person might be referred to an EJS program or sent a caution letter or, indeed, no further action may be taken. The section is intended to encourage Crown screening. Bala (2002: 27) speculates,
“the prosecutor may be more willing than a police officer to take responsibility for deciding not to have a case dealt with by the courts”.
2. Charge Approval in British Columbia
The Crown does not base charge approval on what a “reasonable person” can conclude but on substantial likelihood of conviction. At this point, this file does not meet this standard (B.C. Crown memorandum to a police officer, August 2003, emphasis in original).
The process by which Crown prosecutors screen cases forwarded to them by police is termed charge approval. There is a two-pronged test which the Crown's use to guide their discretion. The first is substantial likelihood of conviction and the second is public interest. To decide whether there is a substantial likelihood of conviction to proceed, the Crown examines the police report using the following evidentiary tests:
- what material evidence is likely to be admissible;
- the weight likely to be given to the admissible evidence; and
- the likelihood that viable, not speculative, defences will succeed.
After the determination of substantial likelihood, Crown counsel determines whether it is in the public interest to proceed. Therefore, even though a case passes the evidentiary test, it may not proceed to court because of public interest.
Another pertinent Crown policy pertains to breach charges. Crowns are instructed not to approve a breach of probation charge where a charge for a substantive offence arising from the same circumstances has been approved. If the accused is convicted of the substantive offence, the Crown counsel should provide evidence at sentencing that the offender was on probation when the substantive offence was committed and take the position that the sentence should reflect this situation.
In this study, discussions with the screening Crowns in three B.C. youth courts resulted in 28 charge approval cases. The majority of the cases were approved by the Crown. In total, 16 cases (involving 17 youth) were approved; 8 cases involving 10 young persons were deemed to require no further action, 2 cases were returned to police for additional information, 1 case was stayed, and 1 case was referred to pre-charge Extrajudicial Sanctions. Taking the young person as the unit of count: combining approved and no further action youth and excluding other cases, 63 percent (17 of 27) of youth were charged and sent to court. If we take youth whose cases were approved as a percentage of the entire screening sample, the percentage approved was 55 percent (17 of 31). Information from the Ministry of the Attorney General indicates that charge approval rates were typically 75 to 80 percent prior to the YCJA.
Three cases considered at the charge approval stage involved females (all of whom had been charged with breach offences). The average age of the charge approval sample was 16. Eleven cases involved breach of bail or probation and no substantive offences. Five cases included offences against the person, which ranged from common assault to sexual assault. The remainder were mischief and other property offences, and so-called victimless offences. Slightly less than half the cases had no previous convictions or Alternative Measures according to data in the police reports.
The main information sources for charge approval Crowns are the “Report to Crown Counsel” prepared by the investigating officer and output from the court or correctional information system on the prior court contacts of the young person. Included in the reports are the outcomes of all hearings, court locations, referral to AM/EJS, disposition and sentence. On occasion, the Crown may speak to fellow Crowns or the police about a case and if the youth had a probation officer, he or she may be contacted. Defence counsel are rarely involved at the charge stage unless the young person is in pre-trial detention or has been dealt with by the youth court in the past.
One-half of the approved cases involved first offenders. One-half included breaches of court orders. Only one probation breach also involved a substantive offence. Breaches of court orders appear to be viewed differently by different prosecutors. Some Crowns were ambivalent about the implication that probation breaches were used for social welfare purposes, especially for females. Commenting that
“unfortunately we need to look at this situation like parents”, the Crown charged a 15 year old prostitute with failing to reside where her probation order specified.
Although the YCJA is not supposed to be used like this, they give us no resources to deal with the social ills – so what can we do? We need to get her stabilized. She can't make proper choices at 15. She is not 17 and I can't let her make her own choices.
Another Crown, in referring a case to court, commented that failure to report to probation and failure to complete a community service order are important, especially the latter because such orders
“pay back society”. In another instance, a Crown said that by not reporting,
“he is blowing off his whole probation order”.
The approved property charges were:
- Break and enter and mischief to a construction site involving a 16 year old first offender and an adult co-accused, perhaps $2,000 damage;
- A take auto without consent case involving a 16 year old probationer (he had three current probation orders and outstanding charges), and he was also charged with three probation breaches;
- A 17 year old probationer with six past convictions who was charged with break and enter.
Other approved charges were assault, two sexual assaults, uttering threats, weapons possession (a three foot machete) and two counts of very dangerous driving. In a sexual assault, the Crown said,
“the substantial likelihood test is a bit difficult”. There was no forensic evidence.
“It will be a lot of ‘she said, he said'”. However, in this case,
“public interest is high because it sends a message to teenage boys that you can't grab and fondle girls.” Although apparently the charge was approved, the Crown “put the case on hold” until she interviewed the victim's mother and explained the trial process to the victim.
Both administration of justice and substantive offences were screened out of the system. The reasons for not proceeding with administration of justice offences were mainly procedural or legal.
- An incomplete Alternative Measures was not proceeded with because the original victim could not be located and it was “pointless” to proceed.
- No further action was taken because the accused was already in custody waiting sentencing to a residential facility. The Crown cited public interest.
- No action was taken against a youth who had failed to pay restitution because the limitation date had past.
- A 16 year old on an undertaking was found by police past his curfew. He had a relatively minor offence history, had a breach charge in another community, was apologetic and the police report was late. The Crown questioned whether the public interest criterion was met.
Examples of the other offences screened out of the system are as follows:
- The credibility of a sexual assault complainant was questionable.
- A sexual touching incident involving a 17 year old first offender was dropped because there were unanswered questions about the complainant's statement and her identification of the accused. This case had already been sent back to police for more investigation. The file indicated that the officer wanted the incident resolved by charge; the quote at the beginning of this section relates to this case.
- A 16 year old who broke a window while drunk had no prior convictions, had no criminal intent and there were no eye witnesses.
- The case involving a 13 year old alleged to have a restricted unregistered handgun was dropped because no fingerprints were on the weapon and there had been opportunity for others to have hidden the gun. An informant told police about the gun, the youth said that he had been
“set up”, and the Crown believed that the father's statement would raise reasonable doubt. The Crown wrote,
“with no fingerprints and no observer to put [the youth's] hand on that gun, there is no way to prove it was ever in his possession”.
Three-quarters of no further action cases did not meet the standard of substantial likelihood of conviction and the remainder of decisions were justified by the public interest criterion.
Two matters where the charges had not been approved were returned to police with a request for further investigation. In one, a 12 year old with an older co-accused had apparently tagged a building with an acid solution, causing $10,000 damage. The Crown wanted to see the videotape of the accused's statement before proceeding to court because the police report did not contain enough information to swear a charge. In the second, two 16 year olds allegedly set a truck on fire, damaging the truck and nearby gravestones. Police had tried to get the two to acknowledge responsibility and pay for the damage ($2,500), but this did not occur. To the Crown, the case was circumstantial and wholly depended on the quality of the witness statements; she asked police to provide all statements.
In five of the 16 cases where charges were approved, police were asked for more information such as the current health of a driving offence victim, a diagram of the premises where the break-in occurred, and evidence linking the damage to the accused. In an approved case the Crown was dissatisfied with the police report. Police
“had not included the basics” such as a copy of the probation order, witness statements, and identification of the accused as a passenger in the stolen car – identification was
“not made out sufficiently for a substantial likelihood of conviction”. For the most part, however, the approved cases referred back for more information were
One case was diverted by the Crown before a charge was laid – a male with no record stole a $60 jacket from a store. When asked why he had stolen, he said,
“because we're so poor”. The Crown referred the youth to EJS for assessment because he had no record and there were six months to lay a charge if he was non-compliant.
In two cases where the charges were approved, the screening Crown indicated that the case might be subsequently diverted (post-charge Extrajudicial Sanctions). In one of the two, the police had recommended diversion. Both Crown and police regard the laying of charges as helping to teach the youth a lesson. The court experience is believed to impress upon the young person the seriousness of his or her actions, “to get his attention”, even though the matters will probably be stayed at a later date.
In another case, during an incident described as initially “horseplay”, a 13 year old boy with a mental age of about 9 years masturbated a 16 year old male neighbour at the latter's request.
“There's no videotape [of the victim's statement, which appears to be routine in B.C. sex cases] so I'm guessing that the police don't want me to charge. The grandmother and the father don't want the neighbour charged.” As per provincial EJS policy, the Crown planned to ask the Regional Crown if he could divert the 16 year old; the Crown would also ask for an assessment.
“The real public interest is to ensure that the kid is not pathological. If the forensic assessment says that he is likely to reoffend, then a charge will be laid to start building a record.”
Disappointingly, Crown and defence counsel found it difficult to explain how the two tests, substantial and reasonable likelihood of conviction, were operationalized in practice. No respondent explained, for example, that reasonable likelihood meant “more than 50 percent likelihood” or substantial likelihood meant “70 percent likelihood”. A Saskatchewan prosecutor remarked that the substantial likelihood standard sounded like the outcome is a foregone conclusion, i.e., that the accused would always be found guilty.
Respondents explained the test used in their courts by example, but their examples were not enlightening. The two following illustrations of substantial likelihood provided by British Columbia Crowns could as easily have been given by Saskatchewan Crowns working under the less rigorous reasonable likelihood criterion. First:
Identification cases are a good example. Two persons are attacked at night by four persons. The two give descriptions and, four blocks away, the police arrest two people who match the description. So they arrest them. A witness picks out one and says ‘that looks like the guy' or ‘I'm not 100 percent sure, but that guy looks closest'. There is no positive evidence. It's not substantial likelihood (B.C. Crown).
A second B.C. prosecutor cited the example of a shoplifting incident where the police report failed to state which of two girls had possession of the stolen goods and failed to provide evidence that the goods were stolen.
With regard to the public interest criterion, a B.C. Crown said,
“the public interest is something that impacts society generally”, not an individual complainant.
Public interest has a minor role compared to the substantial likelihood of conviction. It can play a role in resource management. For instance if it's a minor crime but to resource it, it would be a large financial commitment such as 15 witnesses for a mischief, then it is not in the public interest to proceed (B.C. Crown).
Public interest is a matter of judgment. It gives you a broad discretion. You can say although it's a criminal matter, will public interest benefit from having [the case] in here? I use this for minor offences for young people when it looks like someone who's made a mistake and won't be in the system again (Saskatchewan Crown).
-  By substantive offences, we mean charges that are not system generated; that is, not administration of justice offences such as breach of bail or probation.
-  A 17 year old with psychiatric problems had broken into his father's house. After the youth agreed to attend counselling, his father agreed not to proceed with the matter. This case is anomalous because the charges (mischief and break and enter) had already been laid.
-  This is an indication that general deterrence remains despite its absence from the new legislation.
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