chapter eight

Question 1

chapter eight: first contact: police and diversionary measures

Answer 1

This chapter is about the first stage of youth involvement in the youth justice system, namely, police and diversion. It details diversionary processes, their history, and how the YCJA regulates diversion. After reading this chapter, students will:

Know the initial stages of youth involvement in the youth justice system.
Appreciate factors and issues associated with police discretion in decision-making.

Understand principles and rules regarding extrajudicial measures and sanctions under the Youth Criminal Justice Act (YCJA).
Grasp provincial differences in the administration of diversionary measures and in types of programs.

Understand issues associated with diversionary programs.

Question 2

In this chapter and the next two, we discuss the various stages of the youth justice system, focusing particular attention on how the stages are organized, how decisions are made, and which factors affect decision-making at each stage.

Question 3

what is a youth’s involvement with the justice system?

Answer 3

A youth’s involvement with the justice system begins with a police investigation to determine whether an offence has taken place.

The police or the Crown have the option in most provinces to divert youth from the courts through extrajudicial measures provisions in the YCJA, a practice dating back to the Juvenile Delinquents Act era that was first formalized through alternative measures provisions under the YOA.

Question 4

what is diversion?

Answer 4

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

Question 5

how did YCJA became more formalized with the YCJA?

how did this create an additional level to diversion?

Answer 5

A. While the YOA provided for diversionary programs and regulations around their use, the YCJA also encourages police to consider issuing a warning for first-time offenders involved in non-violent offences.

This has created an additional level to diversion. As a result of these diversionary provisions, if a youth successfully completes an extrajudicial measures program, his or her involvement with the justice system ends.

Question 6

While there are a number of justifications of and benefits to diversion for both the young offender and the justice system, the concept and the practice are criticized by some. This chapter discusses the structure and process of diversion, beginning with police contact and decision-making and continuing with diversionary practices.

Question 7

(police contact and decision-making)

Question 8

how can a young person’s involvement in the justice system may begin?

Answer 8

A young person’s involvement in the justice system may begin with police ­contact in a public setting or with a complaint laid by parents, school authorities, or someone who has been victimized.

Question 9

a majority of youth crime comes to police attention through ____

Answer 9

A majority of youth crime comes to police attention through complaints

Question 10

Police have a consi­derable amount of discretion in making decisions about how to proceed with youth who are suspected or accused.

what is discretion?

Answer 10

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

Question 11

he YCJA requires a police officer to consider if warning or cautioning a youth is sufficient (see Box 8.2), but section 6(2) of the act clearly ­suggests that it is not a violation of youths’ legal rights if the police fail to do so.

an individual officer has the power, freedom, and autonomy to choose from a number of courses of action, including:

Answer 11

1) Issue a warning (formal or informal) to the young offender about his or her behaviour and then let the person go;

2) Arrest and hold the youth in police custody (parents/guardians must be ­notified);

3) Take the young person to the police station for questioning before releasing her or him;

4) Write up a report on the young person before release;

5) Charge the young person with an offence;

6) Release the young person with conditions;

7) In some provinces, refer the young person to a diversionary program or youth justice committee; or

8) Hold the young person in detention (maximum 24 hours) for further judicial processing, beginning with a “bail” hearing.

Question 12

YCJA guidelines for police

Answer 12

Section 6(1) of the YCJA requires police officers to consider if a warning is a sufficient response to a youth’s behaviour

Section 6(1) A police officer shall, before starting judicial proceedings 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.

Section 6(2) The failure of a police officer to consider the options set out in subsection (1) does not invalidate any subsequent charges against the young person for the offence.

Question 13

Canadian and British studies of policing indicate that police surveillance of youth is disproportionately high compared with surveillance of adults.

Answer 13

This discrepancy does not necessarily translate into high rates of criminalization. Rather, most criminal cases involving young offenders are handled informally

Nonetheless, the YOA did result in dramatic increases in the formal charging of young offenders (Schissel, 1993, 1997), which suggests a substantial decrease in the use of discretion by police with youth.

Question 14

Throughout the 1990s, there was little change in the rate of informal case handling by the police, and in the last year of the YOA, four in ten youth (44 ­percent) accused by police were handled outside the formal justice system.

Answer 14

. Statistics from the first year of the YCJA (2003) suggest that sections 6 through 8 had an impact on police charging practices. The rate of youth charged by police decreased by 16 ­percent in 2003, the most significant decrease since the introduction of the YOA

Most informal measures reported by the police involve verbal warnings, and the remaining few are referrals to a community-based program or agency, formal cautions, or formal ­referrals to diversionary programs or committees

Question 15

This raises the question why some youth are charged and others are not. Research has shown that there are legal and extralegal factors associated with police discretion.

what is legal and extralegal factors?

Answer 15

Legal factors refer to legal requirements or to things generally considered relevant or pertinent in criminal justice matters.

. Extralegal factors are those that are not ­necessarily or usually considered legitimate or relevant in justice decision-making. (factors affecting criminal or youth justice processing that are outside the jurisdiction of law)

For example, it would be considered discriminatory or even illegal to hold someone in pretrial detention because of the colour of his or her skin; doing so because of the seriousness of the offence would not be considered as such. In this example, skin colour is an extralegal factor and offence seriousness is a legal factor.

Question 16

> legal factors affecting police discretion

Answer 16

Research on police discretion, most of which until recently has been done in the United States, began more than 40 years ago. This research confirms what we might expect—that the seriousness of an offence and prior arrest records influence police decisions to lay a charge

Question 17

what is the most important consideration in laying a charge for almost all of the officers? (2002)

Answer 17

(98 percent officers) was the seriousness of the offence; whether weapons were involved and the extent of harm or damage done were close seconds (at 88 percent each).

This does not mean that police discretion is not operative in serious offences, however.

Question 18

Sellin and Wolfgang (1964), in an examination of Philadelphia police records, found that

Answer 18

Sellin and Wolfgang (1964), in an examination of Philadelphia police records, found that in cases where youth were involved in offences that led to the hospitalization or death of a victim, only about half resulted in arrests or charges.

Question 19

in chapter 3, we saw that charge rates are highest for what offences?

Answer 19

In Chapter 3, we saw that charge rates are highest for serious offences; however, for some offences, such as sexual assault, only 55 percent resulted in charges, while 58 percent of break and enter and motor vehicle theft resulted in charges. On the other hand, 90 percent of bail violations and 70 percent of cases of obstructing a police officer resulted in a charge, but only 50 percent of theft over $5,000 (Taylor-Butts & Bressan, 2007, p. 15).

Given the major differences in these charge rates by offence, relying solely on the seriousness of the offence would not take us very far in understanding the factors that lead to police charging.

Question 20

another important factor affecting the use of discretion is what?

Answer 20

Another important factor affecting the use of discretion is prior police contact.

Marinos and Innocente (2008), based on a survey of a sample of Ontario police officers, found that seriousness of offence and prior police contact were the most important factors in their decision-making, but equally important is a youth’s “­display of responsibility and remorse.”

This is most important to police as an indicator of whether extrajudicial measures would be sufficient to hold a youth accountable (p. 486)

Question 21

According to a Department of Justice report on the impact of the YCJA, police are now more likely to do what?

Answer 21

According to a Department of Justice report on the impact of the YCJA, police are now more likely to detain youth who have prior convictions and who have previously breached a probation order

Question 22

what was an important factors they used ti determine seriousness of an offence?

Answer 22

PRIOR POLICE CONTACT

Carrington and Schulenberg (2005) found that almost all (96 percent) of the police officers they surveyed reported this to be a major factor (when they have prior convictions and who have previously breached a probration )in their decision-making and that it was one of the factors they used to determine the “seriousness” of an offence.

Question 23

what are legislative regulations that affect police discretion?

Answer 23

. Sections 495 to 503 of the Criminal Code, which apply to police decision-making around arresting and releasing youth, provide broad authority for the police.

The major decision from the point of view of the youth is whether police decide to detain them or release them with a “promise to appear” or an undertaking that specifies conditions, the ­violation of which will result in additional criminal charges of “failure to comply.”

These conditions (s.499(2) CC) include such things as remaining within a specified territorial jurisdiction, abstaining from alcohol and drugs, reporting at specified times to a police officer, as well as any other condition that the police officer considers necessary. The YCJA regulations regarding custody and detention (see Box 9.3, Chapter 9) were written for judicial decision-making and are not specifically directed to the police. Nonetheless, police are expected to comply with these ­principles, ­especially the principle of least restrictive alternative, as well as the general principles of the YCJA laid out in section 3(1).

Question 24

> extralegal factors affecting police discretion

Answer 24

1) race
2) demeanour and race

Question 25

race

While there is considerable evidence that legal factors have an effect on police charging, it is extremely difficult to separate some of these factors, particularly prior record, from extralegal factors

Answer 25

rs. Early research from the United States has shown that both legal and extralegal factors are related to race.

Question 26

who is more likely to be arrested by police and to have a record?

Answer 26

Minority youth are more likely to be arrested by police and to have a record. This suggests that being of a minority race may very well be a more important factor than having a police record

. In other words, if police are more likely to keep records on minority youth, we should not be surprised to find that minority youth are more likely than white youth to be processed by police

Question 27

While the race differential in police processing is clear, the reasons for it are not. It is easy to conclude that police may be biased, but other factors may also be at work.

Black and Reiss (1970), for example, found that

Answer 27

Black and Reiss (1970), for example, found that whether a case proceeds to court has a lot to do with complainants and their wishes. Based on their finding that police complied in every case in which a complainant requested that a youth not go to court, they suggest that African American youth may have higher arrest rates because complainants are less likely to ask for leniency in their cases.

Question 28

What is an important factor in police charching in Canada according to Doob and Chan?

Answer 28

Doob and Chan (1995) found that the victim’s request was an important factor in police charging in Canada, and Carrington and Schulenberg (2005) reported that more than half (56 percent) of the police in their survey reported that victim preference was an important factor in their decision to lay a charge. Others have argued that racial bias in the justice system is the most important factor in explaining ­differences in police arrest and charging (Dannifer & Schutt, 1982; Fagan, Slaughter & Hartstone, 1987). One important factor that intersects with race in police decision-making is demeanour.

Question 29

demeanour and race

One factor that has consistently been found to affect the outcome of youth encounters with police is a young person’s demeanour.

Answer 29

. A youth’s appearance and attitude, and how that youth behaves with a police officer, will influence how the officer will use her or his discretion

Youth who fit a stereotypical image of delinquents—that is, who exhibit a disrespectful, uncooperative, or defiant manner—are more likely to be arrested.

Question 30

The significance of demeanour depends on the seriousness of the offence, but also on _____

Answer 30

The significance of demeanour depends on the seriousness of the offence, but also on race

ccording to Ferdinand and Luchterhand (1970), African American youth expect the worst from police and therefore are more likely to behave in a defiant manner. Police, in turn, see African American youth as more threatening and hostile than other youth. Canadian police seem to concur with respect to the importance of demeanour. Nearly three-quarters (71 percent) of the police surveyed by Carrington and Schulenberg (2005, pp. 166, 169) reported that a youth’s demeanour is an important factor, particularly in relation to a decision to use diversionary measures.

Question 31

A study of police–minority youth relations in metropolitan Toronto and York Region in Ontario illustrates and confirms the types of encounters described by Ferdinand and Luchterhand. Neugebauer-Visano’s interviews with Toronto youth (1996) clearly indicated that young people, regardless of colour, believe that Black youth are a focus of police harassment:

Answer 31

A study of police–minority youth relations in metropolitan Toronto and York Region in Ontario illustrates and confirms the types of encounters described by Ferdinand and Luchterhand. Neugebauer-Visano’s interviews with Toronto youth (1996) clearly indicated that young people, regardless of colour, believe that Black youth are a focus of police harassment:

read textbook for examples

Question 32

Studies of Aboriginal youth in Canadian cities have shown similar kinds of problems. Native youth in cities tend to be located in areas where there are high levels of policing, thereby increasing their chances of arrest

Answer 32

In addition, some police hold stereotypical views of Native peoples. Hylton (1981), who studied police and public attitudes toward Aboriginal youth in Regina, found a relationship between negative attitudes toward Native peoples and a fear of crime. The Aboriginal Justice Inquiry of Manitoba reports that Aboriginal youth have more charges laid against them, are more likely to be held in detention prior to court, and are more likely to be denied bail (Hamilton & Sinclair, 1991).

read textbook for examples

Question 33

police shooting

Answer 33

In May 2004, Jeffrey Reodica was involved in an altercation between two groups of youth when he was shot to death by a Toronto police officer, who claimed Reodica had a knife. In a letter to the editor of the Toronto Star, the chairperson of the Community Alliance for Social Justice, Toronto, names racism as the underlying reason for Jeffrey’s death.

A spokesperson for the Alliance of Filipino-Canadian Youth maintains that the issue of systemic racism was deliberately not addressed in the subsequent coroner’s inquest. An observer of the testimony during the coroner’s inquest said, “It was the racism of those boys against our young people that started all of this. It was very clear that racism played a vital part when the police considered the white youth as the complainant and the Filipinos as the culprits, right from the beginning” (Racism played part . . . , November 3, 2006).

Question 34

racial profiling and carding: media and police

Answer 34

see textbook for example

Question 35

what was police response from carding to community safety notes?

There were 31 recommendations spoke of carding as “community safety notes” and included:

Answer 35

1) Provide more training for TAVIS officers.

2) Monitor TAVIS officers for racial bias and provide early mentoring and training for officers “who show signs of racial bias.”

3) Purge recorded personal information from carding after seven years.

4) Create a standing advisory committee to work with police on racial profiling.

5) Conduct community surveys to evaluate public trust.

6) Eliminate the contact card—form 306—and have officers make notations in memo books.

Question 36

> the evolution of the racial profiling debate?

Answer 36

Ten years ago, police spokespeople maintained that racial profiling 8was not an official or even an informal policy or practice, that most officers did not use or accept racial profiling, and that incidents that do occur are the result of individual officers acting on their own beliefs (see Box 8.4).

Question 37

what is racial profiling?

Answer 37

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

Question 38

why is this claim difficult to substantiate largely because?

Answer 38

This claim is difficult to substantiate largely because, as discussed in Chapter 4, there are no official federal statistics on race and crime because human rights organizations have objected to the collection of justice statistics by race.

Question 39

what was wortley and tanner’s finding of highschool students in Toronto

Answer 39

They offered a multivariate analysis of their initial 2000 survey of 3,393 high school students in Toronto and still found that Black students were more likely to report being stopped by police; that Asian and South Asian students were less likely to report being stopped by the police; and that students coming from poor family backgrounds, single-parent homes, or public housing were also more likely to report being stopped by police

Based on research commissioned by the chief of police in Kingston, Ontario, Wortley also found that Black youth are four times more likely to be stopped by the police, and Aboriginal youth are 1½ times more likely.