Crown Decision-Making Under the Youth Criminal Justice Act

Crown Submissions to Sentence (continued)

5. Factors Related to Submissions to Sentence

The dependent variable is the Crown submission at sentencing: did the Crown recommend a non-custodial sentence or deferred custody or custody or supervision?

Social Characteristics of the Young Person

Three socio-demographic factors are related to the Crown's sentencing recommendation. These significant relationships should be viewed with caution, however, since many disappear when multivariate analysis is done. The Crown was more likely to recommend custody and supervision for those who are 16 years of age or more, neither working nor going to school and those living outside the parental home.

The mental status of a young person may affect decisions. In one case, for example, the Crown asked for more probation for a male drug addict who panhandled and often lived on the street – “he is not all there”. In another, the Crown recommended a period of intensive supervision and support for a young person with FASD. The Crown had had a long talk with the youth worker who said he was doing well in his residential placement, but they needed some “assistance” with him. The Crown described the sentence of ISSP as “purely rehabilitative”.

While the pre-sentence report is important in Crown decision-making, the Crown may not always follow the implicit or explicit recommendation in the report. Even though the youth had a “negative peer group” and the PSR stated that he had a poor response to supervision in community, the Crown asked for more probation and community service. “You look to see if you can take him away from his peers” and “what conditions of probation will help him to get on with his life”. “We ask for those conditions so as to rehabilitate.”

Legal Characteristics of the Young Person

The most serious offence upon which the youth was convicted was associated with a custody and supervision submission: indictable person and all administration of justice offences were significantly more likely to result in a custody and supervision recommendation than were other categories of charges.

When the number of prior findings of guilt was categorized as none to two versus three or more prior convictions, two-thirds of those with three or more convictions had a custody and supervision recommendation compared to less then 10 percent of those with two or fewer offences in their prior history. Another factor strongly related to the nature of the Crown's submission is whether the accused had received custody in the past: 80 percent of youth with an earlier custodial sentence but only 20 percent of those with no such sentence had a custody and supervision recommendation.

A Crown asked for probation with attendance at a youth violence program for a youth in possession of a machete and alleged to be a member of gang called Surrey Thugs Incorporated. “The program will hopefully rehabilitate and protect society” and “I could not justify jail with his record”.

In another B.C. case, the Crown argued that the “only meaningful consequence would be further incarceration” for a male with a history of breach of probation and supervision orders. In discussion with the researcher, he said that the record was “aggravating because he breached another condition. He ignored his last probation; he sabotaged the program that he was supposed to go to; it wasn't a single breach, it was complete sabotage.” The youth was sentenced to 30 days secure custody.

In another breach case, the young person was on the thirteenth month of a fifteen month probation order. Although he had been charged with probation breaches in the past, all had been stayed. The Crown requested a period of community service “to hold him accountable”. He had contemplated another term of probation “but this would be better” because another probation order, with more conditions, could lead to more breaches. Notably, defence had argued that the youth was a “good kid” simply lacking in structure because it was summer.

Program Availability

In British Columbia especially, program arrangements made by youth workers are influential. (Saskatchewan has far fewer programs.) For example, charged with two breaches of probation, a male with a drug problem had been discharged from a treatment program because he was selling drugs (marijuana) to other persons in the substance abuse program. The Crown said he “would normally ask for custody but will ask for probation with the condition of being sent to Camp [x]”.

Other Factors

A variety of other considerations affect the recommendations to sentence of Crown prosecutors.

  • The contents of the pre-sentence report – and less often, of a medical psychological report – tend to be extremely influential in the decisions made by the Crown counsel in the study courts. For example, “I could not ask for custody because of the positive PSR.” A PSR was available in two-thirds of the cases where the Crown suggested custody.
  • The contents of a victim impact statement may affect the Crown's perspective on the case although “we can't rely on the victim's wishes for punishment and will sometimes edit them out”.
  • The comments of the youth worker (for those who are on probation) affect decisions. “My position will be 10 to 15 hours of community service, unless the probation officer says otherwise.”
  • An “early guilty plea” was often cited by Crown and defence counsel as a mitigating circumstance in sentencing.
  • The Crown may view a case more seriously if the accused minimizes the facts and/or does not accept responsibility.
  • The young person may have already received “meaningful consequences”. For example, a young person breached his probation by entering the Skytrain and the Crown determined that the arrest and being kicked out of the station were adequate consequences. The youth received an additional period of probation.
  • A dangerous driving offence elicited the comment that “this offence is an epidemic on the Lower Mainland” and there should be “something of consequence”, although general deterrence is not mentioned in the YCJA. In another court, the Crown said, “the Act says nothing about deterrence – but there are many robberies in the city, more than one a night”. It seems that some prosecutors have difficulty in letting go of familiar sentencing objectives.
  • For dual conviction offences, an earlier decision to proceed summarily limits the Crown's ability to ask for custody.
  • The Crown may be considering the future involvement of the young person in the system. A Crown who recommended intensive supervision said that “the next offence will result in jail because of the ISSP; quite often we're just establishing record” when making submissions. In other words, Crowns may be laying the ground for later more severe sentences.

6. Multivariate Analysis of Factors Affecting Submissions to Sentence

When legal variables were introduced into the regression equation, age, race, activity status and living arrangements did not influence Crowns' recommendation for custody.[34] Whether the accused had received custody in the past was statistically associated with the decision to recommend custody. Both the nature of the current offence and the number of past convictions approached statistical significance. See Table 6.

Variable Unstandardized coefficients t value Significance
  B Std. error
Constant -0.023 0.069 0.337 0.739
Most serious current conviction (other vs. indictable person & administration of justice offences) 0.191 0.104 1.839 0.073
No prior convictions/other sentences vs. prior custody sentence 0.481 0.165 2.921 0.006
Number of past convictions 0.028 0.014 1.925 0.061
  • Number of cases = 44
  • F = 15.068
  • df = 3
  • p = 0.000

7. Relationships between Actual and Recommended Sentence

Table 7 shows the sentencing submission by the Crown in relation to the actual sentence imposed by the youth court on the most serious conviction in the case. In three cases, the recommendation by the Crown counsel was not followed by the youth court: in one case, the Crown recommended a non-custodial sentence (intensive support and supervision) because of the length of time the youth had spent in detention but the court gave the youth person a deferred custody order on the recommendation of the probation officer. In the other two cases, the court ordered less severe sentences: in one instance, the Crown recommended deferred custody and the court ordered probation; in the second, the Crown recommended deferred custody and the court asked for a s. 35 assessment and a conference and made it clear that the youth would not receive custody.

  Crown submission to sentence  
Actual court sentence Other non-custodial outcome Probation or ISSP Custody or deferred custody & supervision Total
Court did NOT order custody or deferred custody & supervision 100.0
Court ordered custody or deferred custody & supervision 0 5.3
Total percent 100 % 100 % 100 % 100 %
Total number 13 19 14 46

Notes: Two peace bonds and one conference are included in the “other non-custodial outcome” category. It is reasonably certain that the conference did not result in custody sentence because the court rejected the initial submission by the Crown of deferred custody.

8. Cases Where the Crown Recommended Custody and Supervision

So far as could be determined, the submissions to sentence made by Crown counsel were in keeping with the criteria in the Act. Only three cases did not have previous guilty findings and in each case, the current offence was violent. None of the Saskatchewan custody cases had a breach of a court order as the “most serious” offence compared to five cases in British Columbia where custody was the Crowns' submission to sentence. As a Crown counsel in the latter province said:

Breaching court orders is very serious. It's undermining the authority of the court and very common for people to get jail.

9. Summary

In gross terms, the Crown's submission to sentence tended to be accepted by the youth courts. This finding could mean that the Crown was attune to the sentencing practices of the sitting judge, that the youth court tends to be influenced by the Crown's perspective, or that the Crown and the court use the same criteria for sentencing. The submissions to sentence were in keeping with the provisions of the YCJA.

Youth prosecutors did not simply rely on the police report but consulted other system personnel, social services staff and sometimes parents or guardians for information on the young person. Social reports, especially pre-sentence reports, were found in about 40 percent of cases and in a substantial majority of cases where the Crown recommended a custody sentence, a PSR was available. In about two out of three cases in the sample, the Crown prosecutor had two or more sources of information, either verbal or written, in addition to the police report and prior record.

Both case characteristics and other factors appear to influence the content of the submission to sentence by the Crown. Of the former, one feature of the young person's prior record – having an earlier custody sentence – was most influential. However, a large number of factors unrelated to the characteristics of the individual case were mentioned during case reviews and interviews with prosecutors.

[34] Not shown in table form.

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