The Impact of the Youth Criminal Justice Act on Police Charging Practices with Young Persons: A Preliminary Statistical Assessment
The Youth Criminal Justice Act ( YCJA ), which came into force April 1, 2003, contains several provisions which encourage police to use alternatives to charging youth whom they have reasonable grounds to believe have committed criminal offences. This report provides a preliminary assessment, based on national statistical data, of the extent to which police practices in Canada relating to the use of charges or other measures are changing in response to the new legislative direction.
In assessing the impact of the YCJA on police charging practices with apprehended young persons, the baseline for comparison is police practices under the previous legislation, the Young Offenders Act, which was in force from 1984 to March 31, 2003. This section begins with a brief review of the provisions of the YOA, and the findings of related empirical research, which are most relevant to police charging practices. The relevant sections of the YCJA are then reviewed, in order to elucidate the aspects of its objectives, principles, and specific provisions which could be expected to have an impact on police charging practices. Our intention here is not to interpret the legislation in order to draw conclusions about how police should react to the new Act; rather it is to identify provisions of the Act which are likely to have affected police charging practices, hence to develop expectations, or hypotheses, to be tested against the statistical data. The section concludes with the research hypotheses which were suggested by our review.
The Declaration of Principle (section 3(1)) of the YOA set out several principles which were to govern the youth justice system: crime prevention (s. 3(1)(a)), the accountability and responsibility of young persons (s. 3(1)(a.1)), the protection of society (s. 3(1)(b)), the limited maturity and special needs of young persons (s. 3(1)(c)), the rehabilitation of young offenders (s. 3(1)(c.1)), restraint in the application of the law, and “least possible interference with freedom” (ss. 3(1)(d) and (f)), special guarantees of the rights and freedoms of the young person (ss. 3(1)(e) and (g)), and the primary responsibility of parents for their children (s. 3(1)(h)). Many writers have pointed out that these principles are broad, diverse, and potentially conflicting, and that the YOA provided practically no guidance to decision-makers as to how to choose among them or to balance them (e.g. Bala, 1997; Doob and Beaulieu, 1992; Platt, 1991).
There are suggestions in sections 3(1)(a.1), (c), (d), (f), and (h) that, in some (unspecified) circumstances, a young person who has committed an offence should be treated more leniently, and/or less intrusively, than an adult in the same situation:
(a.1) While young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;
(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;
(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;
(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;
(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.
These sections – particularly 3(1)(d) and 3(1)(f) – might have led a police officer dealing under the YOA with a young person believed to have committed an offence to take no further action, or use an informal sanction, rather than laying a charge. On the other hand, section 3(1)(b) states that
“society must...be afforded the necessary protection from illegal behaviour” and section 3(1)(c) refers to the need of offending young persons for “supervision, discipline and control”: consideration of these sections might have led the officer to lay a charge.
The Declaration of Principle of the YOA was relevant to any decision taken under the Act, including decisions made by police officers, by virtue of section 3(2), which states:
This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).
Section 4 of the YOA permits, when certain conditions are fulfilled, the diversion to an alternative measures program of a young person who has committed an offence. These programs were operated by social workers, probation officers or members of the community (under the direction of the provincial/territorial Attorney General) and were intended to be less intrusive than adjudication and sentencing in youth court. The nature of these programs varied across jurisdictions in their mode of referral (pre-charge, post-charge, or both), eligibility (types of offences, prior record, etc.), the degree of record-keeping, and availability (Carrington and Schulenberg, 2004a). Although the YOA provided for the establishment of diversion programs, this did not mean that the police could not continue to deal informally with accused youth. However, research has found that the presence and use of alternative measures programs may have resulted in net-widening, as police officers made referrals to alternative measures in situations where previously they would have used a less intrusive measure such as an informal warning. Also, in some jurisdictions which used a post-charge model for referral to alternative measures, police would sometimes lay a charge in order to qualify the youth for an alternative measures program (Carrington and Schulenberg, 2004a).
To summarize, the YOA provided police and other decision-makers with a set of principles which were, according to one authority,
“not coherent and, in some instances,...positively inconsistent” (Platt, 1991); and practically no guidance on how to resolve its apparent inconsistencies in making decisions under its authority.
Research on the impact on police practices of the YOA has found that immediately after the Act came into force, there was a substantial decrease in the exercise of police discretion not to charge apprehended youth, and that this increase in charging persisted throughout most of the period when the YOA was in force (Carrington and Moyer, 1994; Carrington, 1998, 1999; Carrington and Schulenberg, 2004a; Federal-Provincial-Territorial Task Force on Youth Justice, 1996). The size and immediacy of this change in police charging practices with young persons, and the fact that it was not mirrored by a similar change in charging practices with adults, leave little doubt that it was somehow related to the YOA . That the YOA should have provoked more formal treatment of young offenders by police is very puzzling, since the Declaration of Principle and Section 4 on alternative measures appear to encourage the use of alternatives to charging. Various explanations for this phenomenon have been offered, including the impact of the influx of older youth into the youth justice systems of several jurisdictions in which they had previously been treated as adults, the increased procedural formality of the YOA , the frustration of police in having to work under what they perceived as an ineffective law, “zero-tolerance” attitudes on the part of police and the public, public and police perceptions of increasing youth crime, a change in police attitudes towards the ability of community members to deal with crime, creating a lower reliance on informal measures that were previously used as sanctions for less serious crime, or simply, inaccurate data on youth crime (Carrington and Moyer, 1994; Carrington, 1998; Carrington and Schulenberg, 2004a; Gabor, 1999; John Howard Society of Ontario, 1994; Markwart and Corrado, 1995; Moyer, 1996; Schulenberg, 2004). However, none of these explanations has been supported with sufficiently convincing evidence to have been widely accepted.
From the point of view of police charging practices, the YCJA differs from the YOA in two significant ways. First, its overarching principles are coherent, because they are not inconsistent, and because guidance is provided as to the hierarchy of the stated principles. Second, the exercise of police discretion with alleged young offenders is specifically addressed, in several provisions which provide explicit guidance for police decision-making. According to the Department of Justice Canada (2003a), the YCJA provides legislative direction for the police to encourage an increase in the use of measures outside the formal court system for less serious offences.
As in the YOA , the “liberal construction” subsection ((s. 3(2)) of the Declaration of Principle establishes that all decision-making in the youth criminal justice system will be in accordance with the guiding principles set out in section 3(1). Subsection 3(1)(a) states the goals of the youth criminal justice system to be crime prevention, rehabilitation of young offenders, and the provision of meaningful consequences for offences:
the youth criminal justice system is intended to: (i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public.
Subsection 3(1)(b) provides that the youth criminal justice system must emphasize rehabilitation and reintegration, fair and proportionate accountability, procedural protection for a young person's rights, and timely intervention focusing on linking consequences with the offending behaviour.
Subsection 3(1)(c) is particularly relevant to police charging practices:
within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should
- reinforce respect for societal values,
- encourage the repair of harm done to victims and the community,
- be meaningful for the individual young person given his or her needs and level of development and where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration.
Thus, it is not sufficient merely to hold young offenders accountable for their behaviour; in addition, police officers' decision-making must emphasize fairness and proportionality through the use of measures that are meaningful in the context of the offending behaviour (Schulenberg, forthcoming). Stated differently, the key principles of the Act for police decision-making are restraint (in the decision on whether to invoke the formal court process), accountability (by using meaningful consequences), proportionality (responses to youth crime should be proportionate to the degree of responsibility and the seriousness of the offence), promoting rehabilitation that is appropriate for the offence, structured discretion, and protection of the public (holding youths accountable in a fair and proportionate manner may contribute to the protection of the public in the long term) (Barnhorst, 2004: 233-235). The Act requires that
“the seriousness of the offence sets the degree of intervention, and efforts to address the rehabilitative needs of youth must fit within the proportionate response” (Barnhorst, 2004: 235).
One of the most significant changes in the new Act in relation to police charging practices concerns the use of extrajudicial measures (formerly, informal action) and diversion to extrajudicial sanctions (formerly, alternative measures). The Act includes sections specifically addressed to the police, which encourage a lesser reliance on formal judicial measures in order to decrease the number of minor cases appearing in court (Department of Justice Canada, 2003a, 2003b). Part 1 of the YCJA (sections 4-12) provides the statutory framework for dealing with youth who are believed to have committed an offence, outside the formal judicial system. Sections 4 and 5 state the principles and objectives for the use of extrajudicial measures. Sections 6 and 7 deal with taking no further action and the use of warnings, cautions, and referrals to other agencies. Finally, section 10 covers the use of extrajudicial sanctions. 
Although the use by police of informal action with alleged young offenders was permissible and encouraged under the YOA, the YCJA formalizes and structures the police use of discretion. Section 4 of the Act encourages the use of extrajudicial measures, and includes a presumption that they will be used in certain circumstances:
- extrajudicial measures are often the most appropriate and effective way to address youth crime;
- extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour;
- extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and
- extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour, and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who (i) has previously been dealt with by the use of extrajudicial measures, or (ii) has previously been found guilty of an offence.
Extrajudicial measures consist of all forms of diversion from the formal judicial system including the decision not to lay a charge and programs known as alternative measures under the YOA. Thus, these measures include taking no further action, informal police warnings, police cautions, police referrals to a program or agency in the community, pre-charge screening programs, youth justice committees, conferences, and extrajudicial sanctions (Department of Justice Canada, 2003b).
Of particular importance for police charging practices is subsection 4(c), which creates a presumption that the use of extrajudicial measures is an appropriate response for a youth who has committed a non-violent offence and has no prior convictions. Further, it is made clear in subsection 4(d), that extrajudicial measures are not precluded for a youth who has a prior conviction or a record of prior extrajudicial measures. According to Bala (2003), the general practice under the YOA was that a youth was eligible only once for alternative measures. Section 4(d) should counteract this assumption by placing the onus of eligibility on the offending behaviour and not the offender's history.
Section 5(e) reaffirms the principle of proportionality established in the Declaration of Principle by stipulating that the application of extrajudicial measures should be proportionate to the seriousness of the offence. Additionally, subsections (b), (c), and (d) highlight that extrajudicial measures should encourage the young person to repair the harm done, involve the family and community, and provide victims with an opportunity to participate. The repairing of the harm done must be within the limits of a fair and proportionate response.
Section 6(1) establishes the significant requirement that
A police office shall , before starting judicial proceedings [i.e. before laying a charge] or taking any other measures under this Act against a young person alleged to have committed an offence, consider whether it would be sufficient, having regard to the principles set out in section 4, to take no further action, warn the young person, administer a caution, if a program has been established under section 7, or, with the consent of the young person, refer the young person to a program or agency in the community that may assist the young person not to commit offences. (emphasis added)
Section 6(2) makes clear that a charge laid by a police officer cannot be invalidated on the grounds that the officer has failed to consider the use of extrajudicial measures, as required by section 6(1).
Section 7 and 8 provide statutory authority for the provinces to establish police and Crown caution programs. There is no explicit distinction in the Act between informal and formal warnings (cautions); however
“the caution is seen as a more formal or intrusive response” (Bala, 2003: 289; see also Tustin and Lutes, 2004: 23-24). Although section 7 authorizes the provinces to establish police cautioning programs, they have not been implemented consistently across Canada ( Tustin and Lutes, 2004: 23). Furthermore, individual police agencies may, on their own initiative, have developed cautioning programs, which, while technically not “cautions” under section 7 of the YCJA, are operationally indistinguishable from them.
Extrajudicial sanctions (section 10) are a form of extrajudicial measures. They are similar to alternative measures under the YOA . They can be implemented pre- or post-charge, and a charge can be laid in respect of the offence if the conditions of the sanction are not met. According to the YCJA, extrajudicial sanctions are appropriate if the young person cannot be adequately dealt with using a warning, caution, or referral due to the seriousness of the offence, the young person's prior record, or aggravating circumstances (s. 10(1)). Under the YOA there was considerable interprovincial variation in the eligibility requirements for alternative measures (Carrington and Schulenberg, 2004a), and, according to Bala (2003), this variation is likely to continue under the YCJA . Research conducted when the YOA was in force also suggested that the availability of alternative measures programs varied within and across provinces and territories (Carrington and Schulenberg, 2004a). These variations may persist under the YCJA.
Section 10(2) provides the conditions for the use of extrajudicial sanctions. Police officers must take into consideration the needs of the young person and society (s. 10(2)(b)), such that the police decision to use sanctions is consistent with the provisions of sections 3, 4, and 6. The young person must accept responsibility for the offence and consent to extrajudicial sanctions (s. 10(2)(c)). Stated differently, the police cannot divert a youth to sanctions if the youth denies committing the offence, wants to have the charge dealt with by the youth court, or there is insufficient evidence to proceed by way of charge (ss. 10(2)(e) and (f), and ss. 10(3)(a) and (b)). Finally, unlike other extrajudicial measures (e.g., informal warnings), the police decision to use extrajudicial sanctions may be introduced as part of the young person's prior record in any subsequent proceedings. 
The YCJA does not speak specifically to the appropriate police action when handling offences against the administration of justice, such as violations of conditions of bail or probation orders. Common practice under the YOA was to charge a young person who had violated a condition of a probation order with failure to comply with a disposition (Pulis, 2003), which is an offence created by the YOA. The same offence is created by section 137 of the YCJA . The great majority of violations of probation orders involve behaviour which is non-violent and which
“would not be considered a criminal offence if the behaviour occurred outside the context of a probation order” (Department of Justice Canada, 2003b), and could therefore arguably be dealt with adequately by an extrajudicial measure. A person on probation is necessarily not a first offender; therefore, the presumption in section 4(c) does not apply. However, section 4(d) provides that extrajudicial measures should be used in all cases in which they would be adequate to hold the young person accountable and, as noted above, extrajudicial measures may be used if the young person has previously been found guilty of an offence. Given their low level of seriousness, these offences would be good candidates for extrajudicial measures.
Section 59(1) provides an alternative, or complementary, approach to a breach of a probation order: it allows for an application to be made to youth court for a review of a non-custodial sentence, with a view to changing the conditions. Application to the youth justice court can be made for such a review if: the material circumstances have changed, the young person is experiencing “serious difficulty” or is unable to comply with the conditions, the terms of the probation order are interfering with the young person's education, employment, access to services (s. 59(2)), or any other grounds that a youth court has previously ruled as admissible (s. 59(2)(e)). However, section 59 restricts the parties who may make such an application, and police officers are not among these, so it would be necessary for a police officer who discovered a probation violation, and who wanted to proceed under section 59 rather than laying a charge, to enlist the cooperation of someone who was authorized to make an application. On the other hand, breaches detected by probation officers, which under the YOA were normally referred to the police to lay a charge, might well be dealt with by the probation officer under section 59 without contacting the police.
According to the Department of Justice Canada (2003a, 2003b), the preferred approach to breach of probation cases is to apply to the youth court for a review of the non-custodial order. Police who discover such breaches
“should consider referring such situations to a probation officer or a youth worker to determine what, if any, action, should be taken in the matter. One option would be to seek a review...” (Department of Justice Canada, 2003b). The reason given for this position is that:
For a large number of breaches, a review, rather than a charge, is the option that complies with the YCJA 's principle that measures taken against young persons must be fair and proportionate to the seriousness of the offending behaviour. In these cases, a review, rather than a charge, is also more consistent with the YCJA 's objective of reserving the system's most serious interventions for the most serious offences (Department of Justice Canada, 2003b).
On the basis of this review of the relevant provisions of the YCJA, in comparison with those of the YOA, we expect to observe the following changes in 2003 in police charging practices with apprehended young persons:
- A decrease in the number of young persons charged, and a corresponding increase in the number of young persons dealt with by extrajudicial measures.
- The decrease will be concentrated in the less serious and/or non-violent categories of offence, and there will be little or no change in the numbers of young persons charged with more serious and/or violent offences.
- In particular, a decrease:
- in the number of young persons charged with violations of probation condition and other offences against the administration of justice, and
- in the number of young persons charged who have no prior convictions and who are charged with a non-violent offence.
- Continuing interprovincial/territorial variations in the levels of youth apprehended, charged, and not charged; and interprovincial/territorial variations in the impact of the YCJA on police charging practices.
- Some net-widening, taking two forms:
- an increase in the number of young persons dealt with by extrajudicial measures which exceeds any decrease in the number of youth charged, resulting in a net increase in the number of young persons apprehended and dealt with by police, and
- an increase in the level of intrusiveness of extrajudicial measures, evidenced by increased use of the more formal measures, such as cautions and referrals, and decreased use of the less intrusive measures, such as taking no further action and informal warnings.
The majority of these hypotheses are investigated in Section 3 of the report. Due to data limitations, we were unable to address two hypotheses – the hypothesis concerning a decrease specifically in the charging of non-violent first offenders, and the hypothesized increase in the intrusiveness of extrajudicial measures.
-  The substantive force of section 3 was recognized by the Supreme Court of Canada in 1993 in R. v. M. (J.J.) (Bala, 1997: 37)
-  Legal Counsel to the Ministry of the Attorney General of Ontario.
-  The use of alternatives to charging began to increase in Canada in 2000: see Table A.2 in the Appendix.
-  Although the relevant legislation includes Sections 4 through 12, only those sections which apply to police charging practices will be discussed. Therefore, the following sections are excluded: section 8 introduces Crown cautions, section 9 indicates that the use of warnings, cautions or referrals is not admissible in court as evidence of a prior record, section 11 requires the notification of parents if a young person participates in an extrajudicial sanction, and section 12 allows for the victim to request the identity of a young person participating in extrajudicial sanctions.
-  For example, in 2002 (i.e. while the YOA was in force) one police force in New Brunswick and another in Ontario had formal cautioning programs (see Carrington and Schulenberg, 2004a), which appeared to be consistent with the principles of sections 4, 5, and 6.
-  See sections 40(2)(d)(iv) and 119(2)(a).
-  Section 55 provides a list of conditions which may be attached to a non-custodial order; e.g., s.1(a): keep the peace and be of good behaviour, s.2(e): attend school, s.2(f): reside with a parent or approved adult, etc.
-  E.g. disobeying a curfew, disobeying “house rules”, violating an order not to associate with a certain person or to be in a certain place, etc.; see Pulis, 2003.
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