Criminal Law

Track data for bias on youths steered clear of court

By Peter Small, Contributor

Police should be required to compile data on youths who are suspected of committing violent crimes but are diverted from the courts, says Toronto criminal lawyer John Fennel.

Tracking information on the race and other characteristics of youths being given the less punitive option of extrajudicial measures would help guard against police bias, says Fennel, an associate with Hicks Adams LLP.

"It would be really useful to know what kinds of kids are getting the opportunity to avoid charges at the initial point when the police are making a decision on extrajudicial measures," says Fennel.

"The problem with discretion is that unless someone's keeping track of it, we don't know if it is being used fairly," he says.

The Youth Criminal Justice Act requires police officers to consider using extrajudicial measures before deciding to charge a young person, defined as being between the ages of 12 and 17.

Measures range from police taking no action, issuing a warning or caution, or referring the youth to a community program or agency, the federal Justice Department website states.

Hamilton Police report they dealt with 508 young people involved in violent crimes in 2018. Of those, 56.7 per cent, or 288, received an extrajudicial measure instead of being charged, CBC News says.

Such statistics beg the question of how fairly the measures are being applied because they rely on police discretion, Fennel says.

"Are they applying the same criteria or are they allowing kids who look like them or kids whose parents they know to get multiple extrajudicial measures or breaks, versus kids that don't look like them, or they don't know?" he asks.

"We really haven't collected good data on how the police are doing this," Fennel says. "And what data we have seems to confirm the notion that young black people are treated differently by police than young white people."

Interestingly, statistics show that although youth crime has been declining, related pre-trial detention has been increasing, another area where police discretion weighs heavily, Fennel says.

"Maybe we are arresting and charging too often given the overall decline in the crime rate," he says.

Fennel is also concerned that extrajudicial measures may encourage police to take a wholesale approach to violent incidents, such as schoolyard fights, detaining any young person who seems to be involved.

"Rather than trying to sort it out, they'll just offer the kid some kind of extrajudicial measure to resolve it," he says.

The concern is that innocent youth caught in this net may be tempted to agree to an extrajudicial measure to avoid prosecution, Fennel says. Yet they will still have a mark against them, reducing their chance of receiving lenient treatment in the future, he says.

It seems that schools and other institutions are calling on police to deal with incidents where less drastic measures could be applied, Fennel says.

"Breaking up a fist fight and giving people a stern lecture and sending them home to their parents is much better than calling it down to the police station," he says. "It's amazing to me that the fights my friends and I used to get in now result in some kids being taken into custody."

We want to discourage youth fights, but we don't what to criminalize them, he says.

"I think that sends a really bad message," Fennel says.

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