New Toronto Police Initiative: Expanding Pre-charge Youth Diversion
Toronto police are set to launch a new youth diversion program that will be fully implemented by early 2016.
In a recent news release, the two Toronto Police officers responsible for spearheading this program describe the benefits of pre-charge diversion in lowering youth recidivism (i.e. reoffending) rates. They also bring attention to the positive results of a pilot project administered in 2002. For this pilot, nearly 1,500 youth participated in diversion and the officers indicated that only 4% of the diverted youth reoffended during the 20-month period of the test. In addition, the officers spoke about the intangible benefits of the program including the fact that youths are not “criminalized,” but rather given another opportunity to change their lives.
The program is straightforward. If a police officer has reasonable grounds to believe that a youth has committed a minor offense (e.g. shoplifting) they will apply their discretion in choosing whether to arrest and charge the youth or require that they complete diversion. Upon completion of a relevant diversion option, such as counselling, mentoring, or an apology letter, the police will then agree not to pursue the matter against the accused youth. However, if the youth does not complete diversion then charges may be laid.
Police Power to Divert
As dictated by s. 6 of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], a police officer has always had the power to use alternative measures for addressing youth crime instead of arresting and charging.
For example, a police officer is given the statutory power through this provision to administer a caution to the youth, give them a warning or refer them to an agency that can help the youth address the underlying causes of their behaviour. In other words, as front line justice actors, police officers are used as an appropriate and effective means of veering youth away from entry into the court system.
Although police have always had this power, formal pre-charge diversion programs were not as widely used. They were available in some jurisdictions but only recently has the Toronto Police Department made the decision to expand its use across the city.
In 2014, 3,800 youth were arrested for criminal offenses and 35% were released with no charge laid. The hope is that this new program will increase the percentage of youth released without charge through a focused effort on identifying those youth that would benefit from diversion.
Youth Offenders Under the YCJA
The way that our criminal justice system deals with youth is completely different from how we approach crime committed by adults.
The YCJA’s Preamble and Declaration of Principle, which frames the Act, illustrates the unique philosophy. In general, when it comes to youth, we must recognize that they are still developing emotionally and intellectually, and are in need of guidance and support. In this sense, the justice system takes on more of a “parenting” type of role where we avoid emphasis on culpability and blameworthiness of the youth, and instead promote the use of interventions to address their needs. The essential notion is that we punish only in proportion to the degree of the responsibility of the youth, while creating a space for rehabilitation and reintegration back into society.
While rehabilitation and reintegration are relevant for adult criminal proceedings, the difference is that, for youth offenses, they are of primary importance to how all of those cases are managed. This is true even for serious youth crimes, such as a murder or sexual assault, where sentencing clearly accounts for the status of the offender. For example, a youth convicted under the YCJA for first-degree murder cannot spend more than 6 years in closed custody.
Are We Asking Too Much?
With all the responsibilities on the shoulders of our rank and file officers, it seems like the expansion of this pre-charge diversion program may simply be asking too much of law enforcement.
First, officers are asked to consider the extenuating circumstances surrounding a youth’s offense and how they can creatively assist the youth in overcoming the hurdles that have led the youth to commit crime. The officer must recommend the type of diversion they think would be best for the accused and whether a certain offense should even qualify. The process of identifying and tailoring a recommendation to each youth, if done properly, would be time consuming. Given the nature of police work in responding to urgent calls for assistance, is this a reasonable use of police resources?
On the other hand, if the process of creating an alternative for youth is done expeditiously, it may be an indication that officers are not carefully analyzing the needs of the youth. Instead, it could mean that officers are mechanically applying diversion options that may not be well suited for a particular young offender. This would defeat the purpose of the program.
Moreover, do we truly believe that police officers are best qualified to make these types of discretionary decisions that presumably require a deeper understanding of complex social determinates of crime and youth behaviour?
Second, how can we guarantee that there will be consistency across the city in how this policing discretion is utilized? It goes without saying that police officers will be given the necessary training to identify the types of youth and case where diversion would be most appropriate. However, even with training, police officers will respond to similar situations differently. How can we ensure that different youth in similar situations will be treated equitably and have a fair opportunity to take advantage of various diversion programs?
Unfortunately, there exists a very real possibility that disparity by socio-economic background, race, culture, Aboriginal status, etc. of a youth may rear its head as these factors have in other areas of criminal justice proceedings (e.g. sentencing, drug arrest rates, etc.). How can we be sure that this disparity won’t occur in pre-charge diversion as well?
Third, notwithstanding the apparent positive results of these pre-charge diversion programs, there is a valid concern that such programs may actually be compromising the rights of youth.
For example, pre-charge diversion may be viewed as a form of coercion because a youth that has not been formally charged with doing anything illegal is forced to make a decision about whether to enter into diversion or face the risk of a charge and subsequent conviction.
Completely innocent youth may choose to divert simply out of fear of subsequent repercussions. At this stage, the youth has not been charged with anything and therefore is not aware of the case against them in order to make an informed decision about diversion. Although a youth that successfully completes diversion will not have a youth record or face serious long-term consequences, should a potentially innocent youth be subjected to an inconvenient and unnecessary diversion? Or, should they roll their die and challenge a charge?
The news release did not share how members of the defense bar feel about this initiative but their voice would add balance to that of the police and judiciary.
TheCourt.ca would love to hear our readers’ thoughts on pre-charge diversion and how you think the formal expansion of this police power Toronto could change youth offending or impact policing practices in the city.