The Use of Custody under the Youth Criminal Justice Act
“…Canadian society should have a youth criminal justice system that… reserves its most serious intervention for the most serious crimes and that reduces the over-reliance on incarceration for non-violent young persons”
Preamble to the Youth Criminal Justice Act
Parliament, in passing the Youth Criminal Justice Act (YCJA), was attempting to change the manner in which youths in Canada who commit offences are treated by the youth justice system. A large number of concerns had been raised about the manner in which the Young Offenders Act (YOA) had been implemented. Among these concerns was the fact large numbers of minor cases were being brought to youth court and a large number of these cases were ending up with custodial sentences. Indeed, it was well established that a small number of minor offences accounted for a large proportion of cases in youth court and an equally large portion of custodial sentences (Sprott 2001; Doob and Sprott, 2003; Doob and Cesaroni, 2004).
This paper focuses on the use of custody and attempts to answer one fundamental question: Was there a reduction in the use of custodial sentences in the first year of the implementation of the Youth Criminal Justice Act which can reasonably be attributed to the change in legislation itself?
Although the focus is on the use of custody, we do not think that it is appropriate to focus solely on sentencing in youth court. The reasons are simple. What happens at sentencing is a function of the kinds of cases that are going into court. In understanding the impact of the Youth Criminal Justice Act , a focus on sentencing alone could easily lead to quite incorrect inferences. Let us imagine, for example, that prior to the implementation of the YCJA, a court had a caseload of 600 cases being found guilty – 100 “serious”, 200 “average” and 300 “minor” cases. If the proportion of each type of cases that received a custodial sentence was 60% for the serious cases, 30% for the average cases, and 10% for the minor cases, then the overall “sentenced to custody” rate for that court would be 25% (60% of 100 + 30% of 200 + 10% of 300 = 150 of 600 cases or 25% of guilty cases going to custody).
Now let us further imagine that the impact of the YCJA on pre-court diversion of cases was that 80% of the minor cases were screened out, leaving only 60 minor cases and a total of 360 cases going into court, being found guilty, and being sentenced. Under this scenario, if there were no change whatsoever in sentencing practice, the “sentenced to custody rate” would be as follows: (60% of 100 serious cases) + (30% of 200 average cases) + (10% of 60 minor cases) or 126 cases out of 360 receiving a custodial sentence for a “sentenced to custody rate” of 35%.
A naïve quantitatively-challenged observer looking at the “proportion of those found guilty who were sentenced to custody” might argue that “sentencing had become harsher” under the YCJA since the “sentenced to custody rate” had increased from 25% to 35%. In reality, however, it had not changed: the apparent increase in the “sentenced to custody rate” could be entirely attributed to the changed mix of cases in youth court.
Unravelling the causes of changes in the custodial population, then, is not a completely straightforward task when a law, like the YCJA, is designed to change a number of different aspects of the operation of the system. We will begin our analysis demonstrating that there has been a large reduction in the use of custody for young people. In understanding the causes of this drop, however, we will start with an examination of the cases going to court and will, then, work through to the sentencing stage.
Methodology . As part of the on-going monitoring function of Youth Justice Policy, Department of Justice, Canada, a data set was created by and purchased from the Canadian Centre for Justice Statistics consisting of a description of various aspects of all cases going to youth court from 1991/2 through the fiscal year 2003/4 (the first YCJA year). 
A “case” is defined in the same manner that CCJS currently  defines a case: a set of one or more charges against a single individual disposed of on the same day. The case is defined by the name of the charge that exists at the end of the court process. In a single charge case, this is simple. If a youth is charged with an assault causing bodily harm and found guilty of assault, the case would be described as an assault. In the case of multiple charge cases, the case is described by the charge that went “furthest” in the system (e.g., when the youth is found guilty of one charge and not guilty of another, it is the charge on which the youth was found guilty that defines the charge). When two or more charges result in the same decision (e.g., a guilty finding) the “most serious charge” is used to describe the case. This “most serious charge” is decided, largely, on the basis of a standardized list of offences based largely on the average prison sentence lengths (for a sample of adult offenders). This list also places violent offences higher on the list than all non-violent offences. 
Defining “custody” is relatively straightforward. During the YOA years, custody was defined as a sentence involving one or more terms of open custody or secure custody associated with any charge in the case. In 2003/4, the YCJA did not require open or secure custody decisions to be made by the sentencing judge. Nevertheless, all jurisdictions apparently left the “level of custody” decision to the sentencing judge rather than having this decision be made by the provincial director. During the YCJA years, therefore, “custody” means simply that a custodial sentence was imposed on one or more charges in the case. However, there are three other concerns that need to be understood in making comparisons with these data between the YCJA year (2003/4) and all other years.
- Under the YOA, a youth transferred to adult court had as a final decision the notation “transferred to adult court.” What happened to the youth in adult court was not recorded (since it was not a youth court outcome). Under the YCJA, youths are not transferred (except in those cases in which proceedings had begun before 1 April 2003). Hence the rough equivalent procedure under the YCJA – the imposition of an adult sentence – could, perhaps, be recorded as a “custody” sentence under the YCJA or it could be recorded as an “other” disposition. It is not clear what happened. We think that the minor distortion that comes from this change is not going to distort the findings since typically only about 40-80 cases would, in a given year, be transferred under the YOA. Custodial sentences handed down in “transferred” cases under the YOA would not be captured in
this data set just as adult sentences might not, as well. Initial findings from a monitoring study being carried out by the Department of Justice - Youth Justice Policy in 5 cities across Canada suggest that there were likely to be only about 2 or 3 adult custodial sentences handed down in 1712 (urban) cases. The distortion created by this ambiguity, therefore, is not likely to be large.  In terms of the actual number going to custody, it should also be recalled that “transfers to adult court” under the YOA are recorded as a decision of the court and custodial sentences handed down by the (adult) court are not captured or included in this data set.
- Under the YCJA, a new custodial-type sanction was created to deal with very serious cases involving a mental health issue – the Intensive Rehabilitative Custody and Supervision order (IRCS). Unfortunately, during the 13 months between when the YCJA received Royal Assent and when it came into force, all jurisdictions were not able to modify their system of capturing data so as to record the “new” sanctions available under the YJCA. However, the funding arrangements for the IRCS mean that the federal government hears about all IRCS orders. During 2003/4 there were two IRCS orders across Canada.  Hence the custodial counts in these data are underestimated by this number. We have, hereafter, in this report, ignored the IRCS sentences.
- Finally, there is a new sentencing option – the deferred custody and supervision order (DCSO) – that needs to be considered. Under the provisions of the YCJA, a DCSO is a custodial sentence that is to be served in the community under certain conditions that, if violated, can result in the youth being committed to a custodial facility and in the sentence being converted to a custody and supervision order. The youth can be apprehended and placed in a custody facility if the youth is believed to “have breached or to be about to breach” any of the conditions. The Act's provisions for dealing with a breach or imminent breach of a DCSO are the same as those governing the breach of a condition of a custody and conditional supervision order. The legal requirements that must be met before a DCSO can be imposed are the same as for any other custody order. A court may not impose a DCSO or any other custody order unless the order is consistent with the purpose and principles of sentencing under s. 38 and the specific restrictions on custody (e.g., found guilty of a violent offence) set out in s. 39. In addition, s. 39 provides that the court must consider all alternatives to custody. The court may impose a DCSO only if the court determines that there is not an alternative to custody that is in accordance with the purpose and principles of sentencing.
However, the practical reality is that for many, if not most, youths their experience under a DCSO will be more like a non-custodial sentence than a custodial sentence. A youth who does not violate the conditions does not go to custody. Like the IRCS, this new sentencing option is not captured by the Youth Court Survey. It would have been helpful to know how many youths were given this option and to know how many youths violated a condition of the deferred custody order and were sent to custody solely as a result of that violation. However, in our view, since a youth does not go directly to custody as a result of a deferred custody order and in many cases never will, it should not be lumped into custody orders when estimating the size of the group of youths sent to custody. 
The use of youth court and an introduction to the use of custody. As has already been noted, fewer cases were brought to youth court in 2003/4 than in recent years (Thomas, 2005). However, it has been suggested that a more sensitive measure of the use of youth court (across jurisdictions and/or across time) might be the number of cases found guilty (Thomas, 2005: p. 12). The reason for this relates to different practices with respect to pre- and post-charge alternative measures (under the YOA) or extra-judicial sanctions (under the YCJA). We have, therefore, expressed both the rate of taking youth to court and the rate of findings of guilt per 1,000 youths (age 12-17) in Canada (Figure 1). Figure 1 also shows the rate (per 1,000 youths) of sending youths to custody in Canada.
As can be seen throughout this period, the rate of cases going to court and the rate of cases with at least one finding of guilt decreased rather steadily until 2002/3 and then dropped more dramatically in that one year than in any other one year period (Figure 1). During the first year of the YCJA the rate of bringing cases into court dropped by close to 6 per 1,000 (from 33.80 in 2002/3 down to 27.83 in 2003/4 or a one year decrease of 17.7%) while the rate of cases with guilty findings dropped by about 4 (from 20.16 down to 16.87 or 16.3%). There was also a drop in the rate of sending youths to custody in 2003/4. In 2002/3 the rate of sentencing youths to custody was 5.64 whereas in 2003/4 the rate decreased to 3.78 (a drop of 33%).
Figure 1: Use of Youth Court and Custody, Canada, 1991/2 through 2003/4
We now will turn briefly, but in more detail, to the use of custodial sentences. Another very basic way of looking at court activity or the use of custody – and the most direct from the perspective of those providing or paying for custodial space – is to present the raw numbers. The number of cases throughout this period in which custody was imposed on one or more charges in the case is shown in Figure 2. As can be seen in Figure 2, the number of custody cases was dropping from 1997/8 onward. The drop that occurred in the first year of the YCJA, however, (from 14,118 cases in 2002/3 to 9,570 cases in 2003/4 or a one year drop of 32.2%) is a largest annual change during the period beginning in 1991/2.
Figure 2: Number of cases in which custody was imposed (Canada)
To understand this rather dramatic decrease in the use of custody, we believe it is important to examine more carefully the cases that were brought into the court during this period. As we will see, the decrease in cases coming to court explains, in part, the reduction in the use of custody.
Figure 3 shows the rate (per 1,000 youths) of cases going to court. We divided cases into three groups, using the categorization of “very minor”, “somewhat minor” and “all other” cases that we have used previously (Doob and Sprott, 2003; Doob and Cesaroni, 2004). “Very minor” cases involve theft under $5,000, possession of stolen property, failure to comply/appear and YOA/YCJA offences (largely failing to comply with a disposition). “Somewhat minor” cases involve other thefts, mischief/damage, break and enter and minor assault. As can be seen in Figure 3, for the two groups of relatively minor offences, the rates of court referrals have been decreasing during the period for which we have data. For the rest of the cases – a group that includes the more serious cases – the rate of going to court was fairly steady. With the implementation of the YCJA, however, there was a decrease in all three categories of offences, the most dramatic decrease being for the most minor cases.
Figure 3: Rate of bringing cases to court (per 1,000 youths in the community) for cases of varying seriousness
Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault
Changes in the rate of bringing certain types of cases into court can, obviously, affect the relative mix of cases seen in youth court. Figure 4 shows the proportion of the youth court caseload in each year that our three offence groupings accounted for over time. For each year on this graph, the three data points add to 100%. Thus this graph describes the change in the relative mix of cases over time.
Figure 4: Change, over time, in the relative mix of cases coming into court
Very minor offences = theft under, possession of stolen property, failure to comply/appear, YOA/YCJA
Somewhat minor offence = other thefts, mischief/damage, break and enter, minor assault
Figure 4 shows that there was an abrupt, but not very large change in the mix of cases going into court in 2003/4 in comparison to the previous trends. The proportion of the least serious cases dropped roughly 3% (from 38.4% of all cases to 35.0%), the biggest one year drop in the proportion (and number) of this type of case during the period covered by these data. In absolute numbers, there were 32,496 minor cases in 2002/3 entering youth court. The next year there were only 24,639.
The grouping of offences that includes (but is not limited to) the most serious cases (“all other offences”) constituted a higher portion of the youth court caseload than it had ever been (36.1%) though, as we know from Figure 3, there was, in fact, a reduction in the absolute number of this group of cases between 2002/3 and 2003/4. As we know from Figure 1, fewer cases – of all levels of seriousness – came into court in 2003/4 compared to previous years. However, the least serious cases (“very minor offences”) show the largest decrease. The net result is that the “very minor offences” account for a smaller proportion of the youth court caseload in 2003/4 than they had in any previous year. Thus all other cases account for a larger proportion.
-  The set of data does not include an estimated 15% of Ontario cases during 1991/2 and 5% B.C. cases in 1995/6 and an unknown number of cases in Nunavut in 1999/2000.
-  Until about 3 years ago, a different definition of “case” was used by CCJS in its own data releases and in its publications. Hence differences between our findings and those from earlier Juristats may relate to the new definition of what constitutes a “case.” In a similar vein, research carried out in the past (e.g., many of the findings reported by us and by the Department of Justice) used this earlier definition of “case.”
-  Though it is almost certainly not important for the purposes of this paper, it should be realized that this definition of a “case” can, in some instances, be a bit different from the definition of a “case” as it would be perceived in a court. Most important, multiple accused tried together would, by this definition constitute different “cases.” Less important, probably, is the fact that a charge that is dropped on any day prior to the completion of the processing of other charges will be considered a separate “case.”
-  Details of the manner in which cases are named can be found in recent Youth Court Juristats . Any system of deciding the relative severity of charges can be questioned, and different systems could well result in slightly different descriptions of cases. What is most important in this context, however, is that the same rules were used for all data in the data set that was used for this paper. Furthermore, in principle, this is a plausible way of creating and describing a “case.”
-  If that rate, 2-3 adult custodial sentences for 1712 cases is applied to the 70,465 2003/4 YCJA cases, it would mean that there would be 82-123 adult sentences being handed down across the country. This constitutes between 0.84%-1.26% of all custodial sentences during 2003/4.
-  It was always contemplated that IRCS orders would be rare. For the 27 month period ending on 30 June 2005 , there were a total of 12 IRCS orders.
-  Although there are some important differences in the manner in which the YCJA deals with violations of probation orders and violations of DCSOs, it is the youth's subsequent behaviour that results in a court decision of custody.
-  Since cases “transferred to youth court” under the YOA were clearly “findings” involving a case that was not screened out, we have included this very small number of cases in with the “guilty” findings. Their impact is imperceptible in these graphs.
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