Youth Court Judges’ Views of the Youth Justice system: The results of a survey

The use of custody at sentencing

Each judge was asked to consider the frequency with which 10 different factors might be "a relevant factor (alone or in combination with other factors) in [the judge’s] decision to impose custody."[45] Clearly, a great deal of variation existed with regard to the relevance of these factors to decisions to sentence youths to custody. The factors are listed in (descending) order of their (mean) relevance.

For how many cases where you have imposed custody was this a relevant factor?
  Mean relevance
1=Almost no,
no cases
5=All almost all
All/ almost all Most About half A few Almost none/None Total
Serious offence required custody 4.17 48 % 35 % 6 % 11 % 1 % 100 % (235)
Extensive criminal record 4.09 33 % 47 % 15 % 5 % 100 % (235)
Youth likely to commit another offence 3.64 26 % 37 % 17 % 14 % 6 % 100 % (232)
Youth "out of control" 3.17 14 % 28 % 25 % 27 % 6 % 100 % (235)
Youth had failed to comply with previous non–custodial sentence 3.05 17 % 26 % 18 % 26 % 14 % 100 % (235)
Youth had not learned to stop offending from previous non–custodial sentences 3.03 12 % 25 % 25 % 30 %
9 % 100 % (234)
Probation officer indicated non–custodial sentence inappropriate 2.96 14 % 29 % 12 % 33 % 13 % 100 % (235)
Youth not taking court seriously 2.43 8 % 17 % 11 % 36 % 27 % 100 % (236)
Poor home or living conditions required change 2.41 7 % 15 % 15 % 35 % 27 % 100 % (234)
Need for program only available in custody 2.10 3 % 13 % 9 % 38 % 36 % 100 % (234)

Clearly, almost every one of these ten factors was seen by some judges as being relevant for all or almost all cases which ended in custody. At the same time, each of these ten factors was perceived by some judges as being relevant in almost none or none of the cases in which custody was imposed.

What do these results mean? Let us look at one factor: "The youth had successfully completed non–custodial sentences in the past but had clearly not learned from that experience and was continuing to commit offences." Over a third of the judges (37%) indicated that this was relevant for "most, almost all, or all" cases that they sent to custody. Another third (39%) indicated that they considered this factor only in a "few, almost none, or none" of the cases sent to custody. Clearly, little consensus exists surrounding the factors which should be considered in determining custody. The difference, of course, between the YOA and the YCJA is that in the former, no requirement of consensus exists. However, in the YCJA, the law clearly states how different factors should be considered.

Some of the factors listed by judges as being relevant to cases receiving custodial dispositions might be seen as reflecting a "welfare" orientation:

  • the youth was in need of a program that was only available in custody;
  • the youth was "out of control" and needed a custodial sentence to break the current cycle of behaviour;
  • the youth’s home (and/or parents) or living conditions were such that there was a need to get him or her into a more stable environment.

These factors were combined such that a high number indicates a greater tendency to use custody for welfare reasons. This "scale" ranged from 1 (in "almost none or none" of the cases in which the judge imposed custody were each of these three factors a relevant concern) to 13 (in "all or almost all" of the cases in which the judge imposed custody, all three of these factors were relevant). The most important finding is that judges were distributed across the full range of possibilities (i.e., scores ranging from 1 to 13). Second, regional differences existed, with judges from the territories, Atlantic provinces and Quebec most likely to use custody for welfare reasons, and judges from Ontario and British Columbia least likely to do so.

It should be remembered that these questions, and, consequently, this scale measure the frequency with which judges used welfare principles in determining a custodial sentence. It is not a measure of "importance" per se since, for some judges, the principles may be irrelevant for some cases, but crucial in others. Hence, a judge who indicated that welfare concerns were relevant in "about half" of the cases may well give very significant weight to the importance of welfare concerns in this half of the cases.

Welfare orientation at sentencing
  N Mean Minimum Maximum
Atlantic 30 6.8 2 13
Quebec 24 6.2083 2 13
Ontario 65 4.9538 1 12
Prairies 54 5.8704 1 13
BC 52 5.4808 1 12
Territories 4 7.5 5 11
Total 229 5.7074 1 13

F (5, 233) = 2.44, p<.05
Excluding the territories, F (4,220) = 2.64, p<.01

Mean welfare orientation


Earlier in this report, it was noted that "rehabilitation" was rated as the factor which was most important in the sentencing of two of the three types of offenders described in the questions. Not surprisingly, moderate correlations existed between the importance of rehabilitation in the sentencing of one type of offender and each of the others (correlation coefficients of.59, .28, and.34, all p<.01).

However, it is interesting that no significant correlations were found between the judges’ reports of the frequency of their use of custody for rehabilitation purposes and their rated importance of rehabilitation in sentencing (correlation coefficients of .03, –.06, and –.09; all not significant). In other words, those judges who were most likely to indicate that rehabilitation was an important factor in determining sentences were not necessarily the ones who were most likely to use custody for rehabilitative purposes. Hence, these two factors – the importance of rehabilitation, generally, and the use of custody as a rehabilitative measure – appear to be independent of each other.


[45] Question D4

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