Understanding Cases of Failure to Comply with A Disposition
Cases Entering Youth Court
This report examined in detail the nature of the cases involving failing to comply with a disposition (FTC). Section I used one year of youth court data and investigated the case characteristics (e.g. other charges within the case) as these cases entered youth court. It appeared that many of these cases were single (38%) or multiple charges (17.5%) of failure to comply - not cases involving other criminal offences. As cases entered youth court, the more charges for failing to comply (FTC), the more likely that there was at least one conviction for FTC. Custody appeared to be used in a relatively high proportion of cases - 44% of cases with a single failure to comply conviction received custody. In cases with multiple failure to comply convictions (but no other types of offences) over half received custody. Custody was used in higher proportions in cases where there were other administration of justice offences or criminal offences.
Case Composition of Convicted FTC Cases
Section II used longitudinal youth court data to investigate the criminal history of cases that resulted in a failure to comply conviction. All cases in Canada that had a failure to comply conviction (or convictions) that were disposed of in 2002/2003 were identified and all previous offence history (types of convictions and previous sentence) was obtained. These data then, are from the Young Offenders Act era and may not reflect current sentencing patterns under the Youth Criminal Justice Act. Results from Section II revealed that close to half of the sample (46%) only had failure to comply convictions within the case. The majority (74%) of those "FTC only" cases had one single conviction for failing to comply. Of those with other types of convictions within the cases, the majority (47%) were property offences - distributed relatively evenly among break and enter, theft over, theft under and mischief. Violence constituted the next largest proportion of cases (28%) and tended to have equal proportions of serious violence (attempted murder, robbery, sexual assault, assault level two and three) and minor assaults.
When looking at the criminal history of these cases, the majority (43%) had three or more previous cases in youth before the current FTC conviction. Close to half of the sample had a violent offence as the most serious conviction ever. However, the violence was split between more serious violence and minor assaults. Looking more recently, only 25% had a violent conviction just before the FTC conviction (again this was split between serious violence and minor assaults). The majority (38%), most recently, were convicted of a property offence (distributed relatively evenly among break and enter, theft over, theft under and mischief).
Custody and FTC cases
Custody appeared to be used often - with close to half of the sample receiving a custodial sentence. Cases with multiple FTC convictions and multiple non-FTC convictions were treated the "harshest" in terms of custody. Interestingly however, cases with multiple FTC convictions were more likely to receive a custodial sentence than cases with one FTC conviction and one non-FTC conviction. Judges may see cases with multiple FTC convictions as more serious than cases with two convictions, one for FTC and another for a different type of offence (e.g. violence, property, drugs). A multiple regression analysis revealed that the strongest predictor of the current sentence was the most serious, most recent, sentence. The more severe the previous sentence was, the more severe the current sentence for FTC was. The next two strongest predictors were the number of non-FTC convictions within the case and the number of FTC convictions within the case. The more non-FTC convictions or the more FTC convictions with the case, the more severe the current sentence was. The number of convicted cases preceding the FTC case and the most serious non-FTC conviction within the case were the next strongest predictors of the current sentence for the FTC conviction. The more previous cases the youth had or the more serious the current convictions, the more severe the sentence was for the FTC conviction.
The most serious and most recent conviction was the sixth strongest predictor of the current sentence. As the most serious, most recent, conviction decreased (towards less serious offences), the more the current sentence increased (towards harsher sanctions). While this may at first seem counter-intuitive, as one might have assumed that judges sentence with proportionality in mind (the more severe a conviction the harsher the sentence), it appears that the negative relationship was due to the predominance of harsher sentences for administration of justice and YOA convictions. If a youth had a conviction for an administration of justice offence or a YOA offence just before the FTC conviction, the sentence for the FTC conviction was considerably harsher. It may be that in the context of the current FTC conviction, judges see a previous administrative offence as significantly more serious than any other type of offence, even serious violence. One may wonder, however, if this sentencing pattern achieves section 38(2)(c) of the YCJA which states that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. There may be debate around whether an administration of justice offence is more serious than a violent offence. The weakest predictor was the most serious conviction ever in a youth's history. The more serious that type of conviction was, the more severe the current sentence for the FTC conviction was. Overall, the seven significant predictors accounted for 20.6% of the variation in the type of sentence given for the FTC conviction.
Looking at the current FTC conviction cases, Alberta and BC tended to have larger proportions (59% and 74% respectively) of cases with only FTC convictions within them (especially cases with only one FTC conviction) and therefore smaller proportions of cases with other criminal convictions. Quebec followed closely with 47% of cases only containing FTC convictions. The eastern provinces, Ontario and Manitoba/Saskatchewan all looked relatively similar to one another - with similar proportions of FTC only cases (roughly 36% to 39%) and other types of cases.
Given the case composition in Alberta and BC there was a somewhat surprising use of custody between these two provinces. Alberta used custody the least out of all the provinces (29% in open and secure) while BC uses custody the second most (50.6% in open and secure). This is somewhat surprising given that BC had the largest proportion (74%) of cases with only FTC convictions. Alberta had a similar - though not quite as high - proportion (59%) of cases with only FTC convictions but used custody the least. Clearly each province has a different idea about the types of sanctions that are appropriate for FTC cases, with BC predominately opting for custody and Alberta opting for other types of sanctions.
Ontario tended to use custody the most in Canada (56.9%), followed by BC (50.6%), the eastern provinces (47.2%), Manitoba/Saskatchewan (43.2%) and Quebec (39.6%). It is interesting that Ontario used custody more than the eastern provinces and Manitoba/Saskatchewan given that the composition of cases among those provinces was somewhat similar. Multiple regression analyses revealed that, controlling for case characteristics and criminal history, Ontario and BC used custody significantly more than the other provinces.
In investigating the factors related to the type of sentence given for the FTC conviction, this report found that by far the most significant factor was the previous sentence. The current FTC sentence was driven, largely, by the previous sentence - the more severe the previous sentence was, the more severe the current sentence for FTC was. Others (e.g. Matarazzo et al. 2002) have also demonstrated a similarly strong effect of previous sentence within a sample of cases in youth court.
The high use of custody for these relatively minor offences then, places a youth at serious risk of receiving a more severe sentence if he/she ever comes back into youth court, no matter what the offence is. While this report could not examine the conditions that were breached, in a small sample of FTC cases from a Southern Ontario youth court, the most commonly breached condition was
"failing to keep the peace and be of good behaviour" followed by
"obey the rules and discipline of the home or approved facility",
"reside at an address approved by a youth worker" and
"report to a youth worker as required by the court" (see Pulis, 2003). So, for example, a youth could be convicted of shoplifting and receive six months probation. Imagine the youth breaches one of the probation conditions (e.g. runs away from home and therefore does not "reside at an address approved by a youth worker") and comes back into youth court with a FTC charge. The data here suggest that, if convicted,
this youth would be in jeopardy of receiving a custodial sentence. Once breaking the threshold into custody, this youth is unlikely to ever receive a non-custodial sentence again.
There was also an interesting relationship between the most serious, most recent, conviction and the current FTC sentence. If the most serious and most recent conviction (before the FTC conviction) was an administration of justice offence, the youth was significantly more likely to receive a custodial sentence than if the previous conviction was any other type of offence. Even cases with a violent previous conviction were less likely to receive custody than cases with an administration of justice conviction. Given that administrative offences typically involve violating some sort of order (reside someplace, non-association order, curfew, etc) it is unclear if those types of infractions are more serious - and therefore more deserving of custody - than cases that involve serious violence. Clearly there may be some debate around whether this sentencing pattern is achieving proportionality whereby the most serious offences receive the most serious sanctions. There is another question about the use of custody with these cases and Section 39 of the Youth Criminal Justice Act (YCJA). Section 39 states that custody can only be imposed if one or more of four conditions are met:
- it is a violent offence,
- the youth has previously failed to comply with non-custodial sentences,
- the youth has been found guilty of an offence where an adult could serve over two years and there is a history of findings of guilt, or
"in exceptional cases where the young person has committed an … offence, such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles [of sentencing]"(Section 39(1)).
The second provision - that the youth has previously failed to comply with non-custodial sentences suggests that there needs to be are least two failed sentences in the past. Looking at cases with only one previous case before the current FTC conviction (35% of the sample, N=3180), one finds that 33.6% of them received a custodial sentence. It is not clear if these trends will continue under the YCJA, however, it could be argued that the use of custody for these cases is now prohibited. Once again, those with two or more FTC convictions were more likely to receive custody than cases with one FTC conviction and one other type of conviction (38.3% and 26.8% respectively).
If these sentencing patterns still exist under the YCJA and one is interested in seeing the intent of the YCJA fulfilled (e.g. fewer minor cases in court and custody and proportionality in sentences so that the more serious cases are the ones that receive custody) the high use of custody for cases with only or two convictions for a breached condition is clearly a problem. Perhaps one way in which to reduce the number of cases with FTC charges would be to have a review of the sentence first before charging the youth with FTC. A forced review might help to identify if there are conditions that are problematic for the youth. Once in youth court, there could also be discussion about the various sentencing provisions of the YJCA (Sections 38 and 39 in particular). Focusing in particular on how to achieve "proportionality" and what should drive the current sentence (e.g. should the previous record and sentence predominately drive the current sentence or should the focus be more on responding to the current offence?). There should also likely be discussion around how serious people see these FTC cases as they are currently relying heavily on custodial sanctions - the most expensive of our limited resources.
 Matarazzo, A., Carrington, P.J. and Hiscott, D.R (2002). The Effect of Prior Youth Court Dispositions on Current Disposition: An Application of Societal-Reaction Theory. Journal of Quantitative Criminology, 17, 169-200.
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