DIVERSION AND EXTRAJUDICIAL MEASURES

Experience in Canada and other countries has shown that measures outside the court process can provide effective responses to less serious youth crime. Part 1 of the YCJA deals with Extrajudicial Measures and begins with a declaration of principles. One of the key objectives of the YCJA is to increase the use of effective and timely responses that do not involve the court with less serious offences by youth. Such extrajudicial measures provide meaningful consequences, such as requiring the young person to repair the harm done to the victim. They also allow early intervention with young people and provide the opportunity for the community to play an important role in developing community-based responses to youth crime. Increasing the use of extrajudicial measures not only improves the response to less serious youth crime, it also enables the courts to focus on more serious cases.

Principles

Section 4 sets out principles to guide the use of extrajudicial measures:

• Extrajudicial measures are often the most appropriate and effective way to address youth crime.
• Extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour.
  
  One of the advantages of less formal, extrajudicial measures is that they enable much faster responses to youth crime than proceeding through the court process.
  
• Extrajudicial measures are presumed to be adequate to hold a young person accountable if the young person has committed a non-violent offence and has not previously been found guilty of an offence.

This presumption is a strong direction from Parliament that it expects first-time, non-violent offenders generally to be dealt with outside the youth court. It reflects the Act’s theme of restraint in the use of the formal criminal justice process and the Act’s objective of reserving the most serious interventions for the most serious crimes. The prosecutor may find that there are circumstances that rebut the presumption but, in general, it should be unusual for first-time, non-violent offenders to be taken through the court process.

It should be noted that the presumption applies to non-violent offenders who have not previously been found guilty in court. Therefore, a non-violent offender who has a previous offence that was dealt with by an extrajudicial measure continues to have the benefit of the presumption.

• Extrajudicial measures should be used if they are adequate to hold a young person accountable and they may be used if the young person has previously been dealt with by extrajudicial measures or has previously been found guilty of an offence.
  
  The first part of this principle requires the youth justice system to re-orient its general approach to youth crime. Rather than assume that the normal response to youth crime is to charge the youth and proceed to court, officials in the system should in all cases first assess whether an extrajudicial measure would be adequate to hold the youth accountable. If it would be adequate, it should be used. This is not a matter of leniency in the exercise of discretion or giving the young person "a break". It is simply the appropriate action to take under the YCJA.
  
  The second part of the principle is intended to ensure that extrajudicial measures are not necessarily limited to young persons who have not previously committed an offence. One of the reasons that Canada over-uses the youth court is the tendency to allow a young person to be dealt with only once by alternative measures. The fact that a young person committed a minor offence several months ago and successfully carried out an extrajudicial sanction should not automatically exclude him or her from an extrajudicial sanctions program if he or she commits another minor offence. The previous extrajudicial sanction held the youth accountable and should not be considered unsuccessful because another offence has been committed. The subsequent offence is also minor and should be dealt with through extrajudicial measures if they would be adequate to hold the youth accountable for that offence.

Duty of Police Officer

Section 6 of the YCJA requires a police officer, before charging a young person, to take account of the principles in section 4 and consider whether it would be sufficient to:

• take no further action;
• For many minor offences, a decision by the police officer to take no further action may be the most sensible thing to do. For example, the parents of the young person, the victim or others may have already taken sufficient steps to hold the young person accountable. There would be no need to expend limited police resources and other youth justice system resources on such a case.
• warn the young person;
• Warnings by police officers under section 6 are intended to be informal warnings. They are an example of a traditional exercise of police discretion. Experience under the YOA has caused concern that police have decreased their use of this type of informal police discretion and replaced it with charges or referrals to an alternative measures program. In many minor cases, a warning by a police officer is a sufficient response from the justice system, just as it was for the parents and grandparents of today's youth. It lets a youth know the limits of acceptable behaviour. There is also evidence that, in terms of recidivism, a warning or taking no further action is as effective as charging the youth or referring him or her to an alternative measures program.
• give the young person a formal caution;
• Police cautions are more formal warnings by the police. Based on the experience in some jurisdictions, it is expected that a police caution will be in the form of a letter from the police to the young person and the parents, or it may involve a process in which the young person and the parents are requested to appear at a police station to talk to a senior police officer about the alleged offence. A police caution is intended to make clear to the young person the seriousness of the alleged offence and to provide a police response that is between an informal warning and a charge. As with all extrajudicial measures, a police caution may only be used if the police officer has reasonable grounds to charge the young person with an offence. Also, the caution should not be used in cases in which taking no further action or an informal warning would be sufficient.
• Community program or agency that may assist the young person not to commit offences (with the consent of the young person).
• Police officers may, instead of charging a young person, refer the young person to a community program or agency that may help him or her not to commit offences. The consent of the young person is required. The referral may be to a wide range of community resources, including recreation programs, counseling agencies, child welfare agencies and mental health programs. The purpose of the referral is to connect the young person to a program or agency that may address factors that seem to be related to the young person's involvement in crime.
• This type of extrajudicial measure is a form of pre-charge, police-based diversion that has operated to a limited extent in some parts of Canada under the YOA. It is consistent with the concept of community policing and its use depends greatly on the extent to which police-community partnerships have been developed. As noted above, a referral under section 6 is to be made only where the police officer believes, on reasonable grounds, that the young person has committed an offence. It is important to recognize that a young person may feel intimidated when dealing with a police officer and may feel coerced into agreeing to a referral to a community program or agency. The requirement that the referral can be made only with the consent of the young person means that the consent must be informed and voluntary. The young person should be advised of the right to counsel and be given a reasonable opportunity to consult with counsel.

Crown Cautions

Section 8 authorizes the Attorney General to establish a Crown cautioning program in a jurisdiction. This would permit prosecutors to give a caution to a young person instead of using the court process or extrajudicial sanctions. As with police cautioning, each jurisdiction will determine whether Crown cautions will be available and, if so, the form they will take. Crown cautions are similar to police cautions but prosecutors give the caution after the police refer the case to them. In one province where they are currently being used, the caution is in the form of a letter to the young person and the parents.

EXTRAJUDICIAL SANCTIONS

Extrajudicial sanctions, known as alternative measures under the YOA, are a type of extrajudicial measure that is intended for more serious offences and offenders than would be dealt with by warnings, cautions and referrals. In comparison to other types of extrajudicial measures, a more formal set of rules applies to extrajudicial sanctions. Extrajudicial sanctions may be used only if:

• Other extrajudicial measures would not be adequate. Section 10 of the YCJA provides that an extrajudicial sanction may be used only if the young person cannot be adequately dealt with by another type of extrajudicial measure: an informal warning, a police caution, Crown caution or referral to a community program.

There is evidence that under the YOA alternative measures programs were used primarily for first-time offenders who committed very minor offences. Some of the less serious cases that have been dealt with by alternative measures can be dealt with by warnings, cautions and referrals, thus enabling extrajudicial sanctions to be used with cases that would otherwise be sent to the youth court. This approach encourages an increased use of extrajudicial measures that will allow the youth court to be focused on more serious cases.

• Program in jurisdiction. An extrajudicial sanction may only be used if it is part of a program authorized by the government of the jurisdiction.

• Appropriateness. The person considering using the sanction must believe that it would be appropriate, given the needs of the young person and the interests of society.

• Informed consent. The young person must have been informed about the sanction, have been advised of his or her right to counsel, have been given an opportunity to consult counsel and then have consented to its use.  

• Acceptance of responsibility. The young person must have accepted responsibility for the act or omission that forms the basis of the offence. An extrajudicial sanction cannot be used if the young person denies in the offence or wishes to have the charge dealt with by the youth court.
  
• Sufficient evidence to proceed. The crown must believe there is sufficient evidence to proceed with a charge and the prosecution must not be barred.

The fact that an extrajudicial sanction has been used with respect to a young person who is alleged to have committed an offence does not take away the power to lay a charge or to proceed with a prosecution. The court has the power, however, to dismiss the charge in such cases. Where a charge is laid against the young person in respect of an offence, the court must dismiss the charge if it believes that the young person has totally complied with the terms of the extrajudicial sanction. If the court finds only partial compliance has occurred, it may still dismiss the charge if it believes a prosecution would be unfair in the circumstances in light of the young person's performance.

Notice to Parents

The parent of the young person must be notified if the young person is dealt with by an extrajudicial sanction. The person administering the program is responsible for notifying the parent. The requirement to notify a parent reflects the policy in the Declaration of Principle (section 3) that parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Informing Victims

The victim of an offence is entitled, on request, to be informed of the identity of the young person who has been dealt with by an extrajudicial sanction as well as how the offence has been dealt with. This entitlement of victims is consistent with the provisions in the Declaration of Principle (section 3) that victims should be treated with courtesy and respect and that they should be provided with information about proceedings against young persons.

Consequences of Participating in Extrajudicial Measures

Subsection 10(4) provides that any admission of responsibility for an offence made by a young person as a condition of being dealt with by extrajudicial measures is inadmissible in evidence against any young person in civil or criminal proceedings. This provision applies to:

• extrajudicial sanctions;
• police decision to take no further action;
• police warning;
• police caution;
• crown caution; and
• referral to a community program.

Evidence that a young person has been dealt with by a warning, caution or referral is inadmissible in any court proceedings for the purpose of proving prior offending behaviour. Unlike extrajudicial sanctions, the use of one of these other extrajudicial measures does not require a finding of guilt or an admission of responsibility by the young person. In such cases it would be unfair to use such evidence against the young person to, for example, increase the severity of a sentence for a subsequent offence.

In contrast, evidence that a young person has been dealt with previously by an extrajudicial sanction can be used at sentencing for a subsequent offence. Section 40 requires that a pre-sentence report include the history of extrajudicial sanctions used to deal with the young person and the response of the young person to those sanctions. Subsection 119(2) limits access to a record of extrajudicial sanctions to two years and possibly longer.

Examples of Extrajudicial sanctions: write an essay, community work, donation to charity.