Crown Decision-Making Under the Youth Criminal Justice Act
Crown Referrals to Extrajudicial Sanctions (continued)
Several types of programs were available to the study courts. In the Saskatchewan cities where this research was done, there are programs for Aboriginal accused that include face to face conferencing, community service, counselling, and anger management. The John Howard Society manages anger management, restitution, and mediation (face to face meetings with victims) programs. Two offence-specific programs were available: an anti-shoplifting program (StopLifting) and a program for joy riders and others who are involved in auto theft (HEAT).
In British Columbia, victim-offender reconciliation (mediation), community service and letters of apology were the most common diversion sanctions, according to respondents. Several B.C. respondents, both Crown and defence counsel, wanted more variety in EJS programming.
They need more programs. There are two options: Alternative Measures through youth probation – agreements with counselling and/or community service, and second, victim-offender reconciliation – but we need more than that (B.C. Crown counsel).
Another respondent said,
“all we ever see is counselling, letter of apology, and CSW [community service] and I don't even think the CSW is tailored to their needs.” This defence counsel said that the programming for Aboriginal young persons has more variety and the programs are more tailored to the individual. A third said,
“because of the lack of funding everyone gets sent to community service.... Now they tend to be much more regimented, there needs to be more flexibility [and variety]”.
In Saskatchewan, most respondents remarked favourably on the EJS programs but a defence counsel said that the community needed
“more of a variety of EJS programs and more of a commitment to working through problems with kids”. He also said that the diversion programs tend to
try to refer any difficult cases back to court. These kids are used to being rejected. And they end up being rejected. When the EJS guys can push them away, that confirms that is what they are supposed to be – ‘pushed away'.
A regression analysis was done in order to determine how diverted cases differed from other sampled matters when key case characteristics were controlled (Table 3). The dependent variable was “not EJS cases” (i.e., bail and sentencing) versus “EJS cases”. While related to EJS decisions at the bivariate level, age, Aboriginal status, and living arrangements of the young person were not associated with referral to EJS when other characteristics of the sample were controlled.
|Variable||Unstandardized coefficients||t value||Significance|
|Age in years||-0.030||0.019||-1.607||0.111|
|Any convictions (no/yes)||-0.257||0.056||-4.629||0.000|
|Most serious current charge (other vs. all property)||0.082||0.028||2.964||0.004|
|Number of current & outstanding charges||-0.015||0.006||-2.315||0.022|
- Number of cases = 123
- F = 12.759
- df = 6
- p = 0.000
Note: The italicized p values in the last column are significant at p<.05 or below.
Three factors – having no prior convictions, being currently charged with a property offence, and having fewer current and outstanding charges – were statistically significant. All three variables increased the likelihood of the young person being diverted. Prior record and type of offence were the most strongly related to the Crown's decision to divert.
From observational and interview data, it is apparent that there were overlapping rationales for diverting cases. Prior record and offence type are major factors in the Crown's decision. Offences at the “low end of the spectrum” and those that are non-violent are most likely to result in diversion as long as the youth has no prior convictions, a very minor record or a record sufficiently old enough to suggest that there is no pattern of criminal behaviour. Offences against the person (common assaults) were diverted if there were extenuating circumstances such as the youthful age of the alleged offender.
Social circumstances play a much lesser role than offence and prior record. On occasion, the presence of specific programs in the community was influential in the Crown decision to divert.
An important interest of the Crowns in making the diversion decision was that the young person be “held accountable”. Compared to Saskatchewan cases, a smaller proportion of B.C. cases were diverted a second time. One Crown attributed this decision to the lack of variety in EJS programming, especially the lack of offence-specific programs. In general, B.C. Crowns and defence were more concerned about the lack of variety in Extrajudicial Sanction programs than were those in Saskatchewan.
A multivariate analysis of the factors affecting the use of diversion found that having one or more previous findings of guilt, having a current property charge and having few current and outstanding charges were the factors that most influenced the Crown decision to refer a case to EJS. No social characteristics of the young person were associated with the referral to Extrajudicial Sanctions.
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