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Kenneth Campbell

QUESTIONS: CRM 3312 Trend in Youth Crime in Canada What is the starting point for measuring youth crime? • Arrests for offences What is thought to be part of a “normal” development in youth crime? • Most youth engage in aggressive behavior in infancy and decrease their involvement as they grow How do we measure youth crime? • Must begin with incident, arrest, identify suspect and charge or screening to extrajudicial measures • Arrest/court data – often measures of policy decisions rather than offending o policies change arrests What report is the most accurate? • Self reports are more accurate than police statistics because only a small number are actually charged What do victimization surveys show? • Shows no evidence for increased victimization over time • Homicides: public perception of an increase but data indicates otherwise What are trends in youth violence? • Overall violence rates ↑ - 12% in the past 10 years (has to do with police charges, perception) • Climbed 30% since 1991 • 2006 – violent crime was one quarter of youth crime • Driven by increases in assault (80%) • Changed our charging policies in the schools o safe schools act – requires police to be involved with any school fights, before - principle What are trends in homicide accusations? • Varies from year to year • 2006 highest point since 1961, 2001 represented a 30 year low • 84 youth – represents 0.1% of all young offenders • Many (51%) involve multiple perpetrators and gang involvement What are trends relating to weapons? • 5% of all youth crimes • 20% of violence youth crimes • 15% were blunt objects • 14% were firearms • Typically older youth use weapons (15-17) What are trends in property crime? • ↓ 1/3 from 1996 to 2000 (overall decrease) • ↓ 47% break and enter (cctv, alarms, not as lucrative) • ↓ 33% minor theft (most common crime) • ↓ 41% motor vehicle theft What are drug related offence trends? • ↑ 97% over 10 years (overall increase) • 84% involve cannabis • Controlled Drugs and Substances Act o Strengthened law enforcement powers o Increased the range of illegal substances covered (LSD, steroids, amphetamines) • ↑ other drugs (crystal meth, exactly) What are trend relating to crimes in school? • 13% of Criminal Code and drug violations occur on school property (kids spend 5-6 hours/day) • 73% occurred during school hours- now obligated principles to involve police • “Zero Tolerance” policies increase likelihood that violence is reported o common assaults = 30% ↑ o uttering threats = 8% ↑ o Drug offences = 20% ↑ (70% possession, 10% trafficking) o Weapons = 70% ↑ What are trend for non-charges? • 74 000 charged with a crime a year, 104 000 cleared using other measures o warnings and cautions: 44% ↑ o extrajudicial program referrals: 9% ↑ o other means: 47% ↑ • 55% of males, 64% of females (more females than males getting other measures) What are provincial variations? • Canada: 7000/100 000 • Quebec: 3765/100 000 (lower = more lenient attitude towards youth) • Saskatchewan: 19 939/100 000 (Aboriginal population are high) Youth Crime and the Media What do the media convey? • That the notion of youth crime is out of control and that the remedy is tougher punishments What were the privacy rights under the JDA, YOA and YCJA? • JDA: hearings held in camera – no one could get in (word of mouth so no accurate portrait) • Banned publications of a youth’s identity unless in the “best interests” of the child • YOA: allowed media and public in the courtroom but banned publication of youth’s name • Increased fear and created a lack of public confidence in the system (think there’s more but it’s just being reported now, reported on sensationalist stories) • Politicians responded by getting tough on crime • YCJA: continued to be open to public and media but publication banned unless • Youth receives adult sentence, is at large and is a threat to him or others and if court allows it What are arguments in favor of the publication ban? • Societal protection would be better served, through increased information o Would also need to know if guilty, sentenced, where living when to protect yourself (weakens argument) • 2. Enhanced deterrent effect on youth o Deterrence is ineffective (impulsive usually) How do the media create myths? • They’re reporting fosters unrealistic fears and creates misperceptions about crime How do the media select crime news? • Seriousness of offence • Unusual elements • Sentimental aspects • Involvement of high status person • Criminal acts will be publicized if: unusual, increased number of victims, multiple offenders, victims are elderly, female, children or affluent What is Cohen’s moral panic? • Creating moral outrage through negative images in the media and public outcry leading to harsher treatment • Cohen demonstrated a moral panic in the UK in 1970’ (mods and rockers) o Became defined as deviant over their actions over a weekend o Police overreacted, media perpetuated threat What is Goode & Ben-Yehuda’s moral panic? • Heightened level of concern over group • Increased hostility towards group • Widespread consensus over that threat • Concern is disproportionate to harm • Moral panics are volatile and relatively short-lived What are moral panics in general? • Crime waves are actually media waves (Bortner, 1988) – not accurate • Panics de-contextualize youth crime - don’t have context in media to understand crime • Most frequent reporting is of individual episodic events, dissociated from context What does research on media show? • 94% of youth crimes reported in media involve violence when only ¼ of youth crimes have violence involved • Emotionally driven, promote fear • Cause and effect of moral panics • Justify inappropriate, harsher strategies for dealing with youth crime Police Decision-making with Young Offenders: Arrest, Questioning and Dispositions When a crime is first reported, what to the police do? • Gather information • Identify the offender • Chose a disposition (lay a charge or not – can give warning) • Make a police report • Decide the mode used to compel court attendance (most released on judicial interim release) What are the characteristics of an arrest? • physically (handcuffed), by order (not to move etc.), lay a charge (formal accusation), information (taken to justice of the peace) • must have reasonable grounds and a warrant unless: o they think they have committed or will commit serious offence o in the middle of committing offence o subject of outstanding arrest warrant • arrest applies differently for youth: o must notify parents o right to retain and instruct counsel – NOT parents What are the characteristics of a search? • Only allowed if authorized by law • Similar to arrest warrant – judge or justice of the peace only with reasonable ground • Allowable without a warrant if: o Do it to protect themselves o Prevent destruction of evidence o Not practical and don’t have time o If an officer believes there’s illegal drugs or a weapon • YCJA modifies search for youth o For police protection o Occupant has a “named substance” on themselves What are the implications of school searches? • School officials are not subject to the same constraints as police o don’t need warrant to search locker or desk because it’s school property • Must consider credibility and specificity of information • Locker searches are considered legal • Less intrusive than searching persons • Officials often have keys and policies that lockers may be searched • Youth have fewer Charter rights when questioned/searched by school officials than by police • Only public safety concerns would allow for a broader scope for police action What does the R. v. M.R.M. case decide regarding school searches? • search by VP who was told by students that one student was selling drugs • called police, VP asked student during dance if they had drugs, said no, wanted to search him • he was acting to enforce school disciplining so held accountable to different standard, if it was a police it would of been unconstitutional • need reasonable grounds to believe that a violation of school regulations or discipline has occurred What does the R. v. A.M. case decide regarding school searches? • R. v. A.M. – police search for drugs with sniffer dogs, without a specific request, but with principal’s permission o principle had told police to come whenever they had dogs o had no reason to be there that specific day though o Drugs found and youth charged with possession o Youth court found a violation of Charter S.8 and excluded the evidence o Supreme Court clarified the role of sniffer dogs o Can be used without a warrant for routine criminal investigation based on “reasonable suspicion” drugs may be present A confession by a youth is not admissible if? • not voluntary • obtained in a manner that infringed on rights (say you’ll be locked up if not etc. – induced (central park five) Why are youth more likely to make involuntary statements? • lack sophistication to understand rights • don’t understand roles of professionals (don’t understand lawyers or what a plea is) • more open to influence of authority figures What does S.146 of the YCJA state regarding statements? • statement is inadmissible, unless before statement, youth was informed of: o right to remain silent o evidence may be used against him o youth has right to counsel or parent o youth can consult with counsel or parent before making the statement  if youth waives that right there needs to be a record o must be made in a language that was appropriate to youth’s age and understanding  kid has to be able to reiterate back what was said What is most often litigated at trial? • Admissibility of statement What are provisions that undercut protections? • youth may waive right to counsel/advice o but audio, videotape or writing must be used to record confession • judge may admit a statement where there has been a “technical irregularity” o even if mistake to make sure if kid understood What are dispositions that police use for young offenders? •Informal action: extrajudicial measures, warning o 78% of sample always consider this and they should because law is written that way •Diversion to a program: eligibility set by province (pre or post charge) o 99% of sample use diversion (although dissatisfied with unavailability of programs) What are factors that affect the decision to charge? • Nature and Circumstances of the incident: who is the victim, state of victim, what is the crime, with other youth or adults... • Characteristic of the offender: contact with police before, prior convictions, age, race, gender • Seriousness of the Offence: related to degree of harm done, weapon, victim (98%) • Prior contacts with police: strongly associated with likelihood to charge (96%) • Demeanor: youth more likely to be arrested if hostile, uncooperative or disrespectful (71%) • Victim’s preference (56%) • Youth’s home, school and parental situation (42%) - more likely to release youth if parental involvement was high and more likely to lay a charge if parents want nothing to do with kid, minimize or deny seriousness of offence • Gang related crime/gang affiliated youth (39%) • Youth’s age (27%) • Race: no respondent found it important • Other issues: no role for lone/groups, location, intoxication, adult involvement, relationship with victim, gender all made little or no impact What are ways of compelling a youth’s attendance at court? • Summons and appearance notice (62% use it, least interference consistent with YCJA principle) • Release on promise to appear (taken to station, conditions to follow, charged if not followed, with officer in charge undertaking) • Detention for a judicial interim release hearing (most intrusive) The Roles of Legal Professionals in Youth Court What is the role of the Crown? • Acts on our behalf and represents the government o advises police and other professionals about charges o considers society’s best interest o may have heavy case loads, inadequate time to prepare for court o in Ontario, must consider if extra judicial measures are appropriate • Balance role of adversaries (see justice) and guardians of public interest (what goes to court) • Crown involvement extends from pre-charge to sentencing (advise police, negotiate plea deals, pre trial conferences, legal research, appear in court) What is the role of the Defence Counsel? • Represents the legal interests and not societal interests • Ensure rights are respected • Represent youth, not parents • Concerns about their effectiveness o meet lawyer in the courtroom, mixed up files, don’t know their names • Increased involvement raises questions o making youth feel less responsible for their acts • Youth may feel disengaged from process o don’t understand what is going on, don’t understand legal language • Legal advocate vs. guardian? o legal advocate: advises clients or right to remain silent, suggest non co-operation with police, tries to prevent conviction o guardian role: best interests of the child, concern with rehabilitation  maybe custody is best interest, goes against legal advocate What is the role of the Duty Counsel? • visit youth in holding cell and advise on appearance • don’t seek out clients, only ones who come in jail - contact family on behalf of offender • May examine witnesses • Make arguments to judge • Guilty plea – advise youth of consequences • Don’t represent them in trial What is the role of the Private Counsel? • Legal Aid “Certificate” – may be taken to lawyer of choice (legal aid will pay their fees) • YCJA allows provinces to recover costs (sec.25(10)) (available but no one actually uses it) o Ethical question? If parent knows of this, isn’t it possible they want to reduce cost by wanting a guilty plea? What is the role of the Court Judge? • Same rights/responsibilities as ordinary court o primary role is to manage proceedings o determine proper procedure o determine if youth has had opportunity to consult counsel o can say they don’t accept guilty plea o resolve disputes about evidence  voir dire: trial within trial, determine admissibility of evidence o determine guilt or innocence What is a Judicial pretrial? • presided over by a judge other than trial judge, not same judge who tries case • has crown, defence, police attend • goal is to speed up trial by deciding on evidentiary issues and possible sentences • idea behind is to, because presumption of innocence, they don’t youth who are not on bail to spend a long time being held • crown and defence are not obligated to follow what is decided in a JPT How does the YCJA affect the Crown and police’s role? • Structures Crown and Police discretion around extrajudicial measures, sentencing and custody (want less charges) When can the Crown file for a Serious Violent Offence? • When the youth caused or attempted to cause serious bodily harm • Need a pre-sentence report to get all sides of story • A third conviction would allow for intensive rehabilitative custody and supervision sentence What is conferencing? • A group of people convened to give advice and recommendations on sentencing and can take the form of o case conference: professionals meet with parents and offender o restorative conferences: youth meets with community, family, victim • Judge is not bound by it What are characteristics of the trial process? • Follows summary procedures • Sentencing options determined by offence • All youth must appear to court (not adults) • Judges can order people removed from court • Judge must be sure youth understands charge and plea • Both lawyers may ask for adjournment, AM for very young offenders • No preliminary hearing, unless 5 years or more = no jury What are relevant adult sentencing principles? • Retribution: integral aspect, unreasonable to apply adult standard, as they lack capacity to understand actions • Incapacitation: most agree youth should be removed; less agreement as to how long, and under what conditions • Rehabilitation: ultimate goal is rehab back to community, youth more amenable, may run counter to proportionality principle o rehabilitation focuses on needs, maybe want a long sentence to address needs but proportionality would only be looking at what crime and what sentence is appropriate • Deterrence: some feel it has no place in youth sentencing; based on the idea of rational choice, which would require the youth to consider: o consequences - most kids don’t think of this o chances of getting caught o knowing the penalty - not many know penalties o weigh chances of apprehension o weigh costs of sanctions against benefit of offence o for deterrence to work we need to know that youth are thinking of these things but they don’t, they’re impulsive Community-based Reponses to Youth Crime: Cautioning, Conferencing and Extrajudicial Measures What is the value of alternative measures? • not only method, used with restraint, deal more sensitively and comprehensively with problems, can help achieve societal goals without being punitive What are the different alternative measures under the JDA, YOA, YCJA? • JDA: no provisions dealing with diversion but it was widely used • theoretical rationale: labelling theory – self fulfilling prophecy: once you label them delinquent they become delinquent • Little research but people thought it was the best way to have them not reoffend • Diversion was faster, less costly, community played a role • YOA: very restricted use only for first time, minor offenders • Quebec used it the most even before YOA, had the Youth Protection Act, often used pre- charge • Ontario resisted its implementation (no evidence that is was effective, concern with net- widening, abuse of rights), often used post-charge o Forced to enact it after R. v. S.(G) and R. v. Askov – trial delays • YCJA: now called extrajudicial measures • increasing number of kids in custody so needed to get some out • includes informal and formal diversion, and police discretion • S.4 creates the presumption of using these if youth with no record, minor offence • Youth doesn’t have the right to be dealt with outside of formal court system (not an obligation) • 1) Warning: consider attitude, prior offences, seriousness of offence, views of victim • 2) Caution: more formal than warning, administered by police or in letter (no admission of guilt) Why is there an increase use of diversion? • Rates of youth crime are falling, concern increasing so use a get tough approach to crime What is a youth justice committee? • It monitors and supports youth justice systems, administers alternatives measures, now paid and not volunteers. They advise government on how to improve the system, provide info to public, co-ordinate systems. What is a youth justice conference? • Inspired by family group conferences, based on Aboriginal practices • Group of persons convened to give advice concerning a specific youth in trouble with the law • Takes time, requires someone who cares to get involved • Includes: extrajudicial sanctions, sentencing circles (anyone can talk about impact of crime) • Recommendations not binding to the court What are extrajudicial sanctions under the YCJA? • Pre-charge/post-charge – provincial policy regulates referral o police directly refer to program (pre-charge) o court proceedings commenced, youth has to appear in court proceedings adjourned and dismissed if youth completes program, if doesn’t goes back to court like if he went against probation • Youth meets with agency, accepts responsibility, agrees to plan, parents notified • Youth has to sign agreement that he will do those things • Youth might have to: write essay, do community work, make a donation to charity, do yard work • Some programs aimed at “underlying circumstance” – counselling/treatment • Victim involvement – informed about process, often invited to be involved o victim impact statements – can’t say what you think the offender should get o often they don’t want to be involved o victims are often other youth that are scared so need to be conducted with sensitivity • Aboriginal communities: many have extrajudicial sanctions programs based on restorative ideals What are the role and rights of youth regarding extrajudicial sanctions? • Considerable pressure for youth to participate - cost less, pressure from parents, disruption in their life is a lot less than being in court • Fewer legal protections exist for youth who choose this rather than court - don’t have a lawyer • Youth must accept moral responsibility for the act, discuss circumstances of the offence, and be advised of right to legal representation o not the same as being guilty o no statutory for access to legal representation, so not automatic o may have duty counsel at beginning but then no representation What are the consequences of participating in extrajudicial sanctions? • Completion – cannot proceed to court o it’s over once he’s completed program • Incomplete – may be referred to court o may be convicted and even sentenced to custody if history of non compliance • Partial completion – judicial discretion o judge can dismiss charges or take into account what completed and move forward • Law allows a two year period of access to records of extrajudicial sanctions when youth is convicted of another offence o if convicted within 2 years, shows that lower sanctions don’t work o after 2 years: obliged to destroy history but different agencies have different policies o not ever really destroyed (computer) o very costly to put youth in custody What is sentencing like under the JDA? • Courses of action – not very many • Youth sentence could be altered at any time • Welfare oriented law – broad definition of delinquency • Sentencing decisions in the “best interests” of the youth - rather subjective • Law meant to “correct” and “treat” youth - not necessarily punish • Youth could be under jurisdiction until 21 years • Assumption that courts act solely in the interests of the youth - but don’t always • Legal appeals were restricted – only if special grounds were considered , no automatic right to • Sentences under the JDA did not reflect the seriousness of the offence o kids in same facility, one committed murder and one where parents couldn’t control him • Problematic means of sentencing – indeterminate sentence, no right to appeal, proportionality not relevant here What is sentencing like under the YOA? • Created fundamental changes in sentencing • Sentences became “dispositions” and definitive in length (2-3 years max) • No parole or statutory release – 18 months means 18 months • Declaration of Principle (sec.3) has a few provisions related to sentencing o special needs, rehabilitation, parents were part of process • Welfare considerations still relevant, as was rehabilitation • Nature of offence should be taken into account o new and important part, not just based on needs now • Murder sentencing: 10 years (1 ), 7 years (2 degree) - longest determinate sentence for youth up to date • Custody was not a substitute for child welfare concerns- even if legitimate reason • Sentences increased and custodial sentences more closely linked to the offence • More youth were being sentenced to shorter sentences • Number/proportion of long sentences decreased o had long histories by the time they get prison What were the problems with sentencing under the YOA? • Canada had a high rate of imprisonment of youth when compared to other countries o even if based on nature of offence, we have more kids coming in system • Canada does not differentiate adequately between se
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