Chapter 8 - Police and Diversionary Measures

Question 1

A practice based on a philosophy that justice, rehabilitation, and reintegration are better served by keeping most people out of the formal justice system.

Answer 1

Diversion

Question 2

The decision-making power that police and other criminal justice personnel (judges and crown prosecutors) have to make decisions with minimal legal requirements.

Answer 2

Discretion

Question 3

Mechanisms and processes by which the state keeps track of people and monitor their behaviour.

Answer 3

Surveillance

Question 4

Factors affecting criminal or youth justice processing that are outside the jurisdiction of law.

Answer 4

Extralegal Factors

Question 5

Exists when racial differences in law enforcement surveillance activities cannot be totally explained by racial differences in criminal activity or other legally relevant factors.

Answer 5

Racial Profiling

Question 6

Refers to disproportionate minority police contact because of frequent criminal activity, invovlemtn in serious crime, or persistent criminal offending.

Answer 6

Differential Involvement

Question 7

Refers to disproportionate minority police contact because of systematic inequalities in the justice system or discriminatory practices by justice personnel, including the police.

Answer 7

Differential Treatment

Question 8

Youth with characteristics and/or living circumstances that are known to be criminogenic.

Answer 8

High-Risk Youth

Question 9

The detrimental consequences for an individual of having a negative label or definition attached to his or her behaviour.

Answer 9

Stigmatization

Question 10

A variety of programs under the YOA, such as mediation, designed to prevent future crime and divert youth from the courts.

Answer 10

Alternative Measures

Question 11

The principle that whatever action is taken should have the least impact on a youth’s freedom.

Answer 11

Principle of Least Possible Interference

Question 12

Under the YCJA, refers to processing accused young offenders by means other than through the youth or adult justice system.

Answer 12

Extrajudicial Measures

Question 13

Used under the YCJA when cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs.

Answer 13

Extrajudicial Sanctions

Question 14

An important component of the mediation/healing process, based on the belief that a productive response to crime is to encourage all affected parties to participate in conflict resolution.

Answer 14

Reconciliation

Question 15

A form of conflict resolution that involves a third party, usually a person with professional skills, to assist two parties with a grievance or unresolved matter to reach a mutually agreeable solution.

Answer 15

Mediation

Question 16

Payment in money or kind to compensate victims for their loss.

Answer 16

Restitution

Question 17

A tendency for places seemingly designed to reduce the number of people in the justice system to inadvertently result in more people under state control.

Answer 17

Net Widening

Question 18

Police Contact and Decision-Making

Answer 18

• Police have direction in their decision-making
• In cases of youth crime, police have a number of options
• The YCJA indicates that officer “shall” consider warning rather than formal sanction
• The significance in YCJA and word ‘shall consider’ does not mean that an officer fails to take an action or program referral that he or she subsequently lay a charge

Question 19

Police Options YCJA

Answer 19

• Issues a warning (formal or informal) and let the youth suspect go
• Arrest the youth and hold in custody
• Question the youth suspect
• Write up a report and release the youth suspect
• Charge the youth suspect with an offence
• Release the youth suspect with conditions
• Referral of the youth to a diversionary program or youth justice committee
• Hold youth suspect in detention for 24 hours until a “bail” hearing can be held

Extralegal Factors

• Supportive ‘good’ families more likely to be dealt with by diversion.
• Some of the research seems to suggest that young people who seem to have a supportive background are more likely to be dealt with this in this manner

Question 20

Legal/Extralegal factors Affecting Police Discretion

Answer 20

• Seriousness of the offence and prior arrest records
• Prior police contract (“known to police”)
• Previously breached a probation order
• Rules of the Criminal Code
• Also restricted by rules of the code. Criminal code sections regarding police discretion relate to detaining versus releasing with promise to appear after a youth is arrested.

Extralegal Factors

• Race: minority youth are more likely to be arrested and have a record
• Demeanour and Race: A suspect’s behaviour, attitude, and appearance determine the outcome. Police may perceive all Blacks/Aboriginal youth are “difficult”, leading to a self-fulfilling prophecy.

Question 21

Disproportionate minority contact with Police

Answer 21

• Disproportionate involvement suggests that minority groups are more likely to be engaged in criminal activity
• Disproportionate treatment refers to the presence of discriminatory practice by justice system personnel

Question 22

Age and gender

Answer 22

• Gender differences in charging depend on age and nature of the offence
• Older boys are more likely to be charged and go to court than older girls, but younger girls are more likely to be charged and go to court than younger boys

Question 23

Why diversionary measures?

Answer 23

Why diversionary measures?

• Stigma: there are negative consequences to being labelled a youth offender
• Least possible interference: emerges as an idea in YCJA to decrease stigma
• Extrajudicial measures — police: Under the YCJA, this involves processing the offender by means other than the courts. These are less formal and are ordered by police and other justice officials
• Extrajudicial sanctions (punishments) courts: These are mandatory actions ordered by the court. These use formal diversionary programs.

Question 24

Youth Justice Committees

Answer 24

• Give advice on extrajudicial measures —like diversion
• Facilitate reconciliation between offender and victims — RJ practices, VOM or VOR
• Coordinate youth services and justice system
• Advise on compliance
• Give public information

Referral and success rates vary

Question 25

Diversionary Measures Issues

Answer 25

• Police accountability: concern police discretion has enabled increased use of detention and the imposition of release conditions that are further criminalizing youth — the court puts more conditions on youth and sets them up for failure.
• Police discretionary decision-making: appears contrary to YCJA objective of reducing use of custody
• Net-widening: tendency for policies intended to reduce the number of people in the justice system to actually increase the number
• Diversion is formalized: therefore creates a justice system that still labels the youth in a different manner

Question 26

Net Widening

Answer 26

• Largely based on police discretion through use of extrajudicial measures
• A consequence of participating in Extra Judicial Measures is requirement to take responsibility for actions. Alternative if youth wishes to not be involved in EJM is to go to court, plead not guilty and be processed accordingly. Changes to pre-trial detention imposed by Bill C-10 requiring record keeping for EJMs so they maybe used to justify detention mean nature of diversion is tainted. In its origin suggested a young person could avoid stigma of criminal / further consequences if s/he complied with diversionary measures required. Changes mean that despite compliance previous interventions can be used against youth in future.
• Warnings & cautions are formal. There is a record kept by police agencies.
• Bill C-10 changed conditions for pre-trial detention to include a pattern of EJMs (extrajudicial measure), or a pattern of guilt, formalizing need for record keeping

Question 27

Problems with Mediation, Reconciliation, and Conferencing

Answer 27

• Businesses may not participate due to employee costs and other factors
• Some offenders have been sued in civil court for costs accrued by businesses
• Shaming the offender: is inherit in the restorative justice practice of having a victim and offender meet. This must be approached in a positive or reintegration perspective rather than from a negative or disintegrated perspective. The goal is to not punish the offender by shaming or humiliating him or her. Instead the shame is supposed to take the shape of remorse and the desire to restore the relationship with the victim.

Question 28

Strengths/Criticisms of Diversion Programs

Answer 28

• Restorative justice: needs of victims can be addressed
• Closure for victims*
• Restitution for property offences - proportionate to your ability to pay
• Harm to victims and communities can be addressed
• Community can be involved in the justice process

Critics of Diversion

• Offender’s shame and stigma may persist
• Bureaucracy of programs
• Inequality of access to programs
• Some programs only deal with minor offences