Youthful Discretion: Police Selection Bias in Access to Pre-Charge Diversion Programs in Canada

• Author: Kanika Samuels-Wortley
• Published date: 01 April 2022
• Date: 01 April 2022
• DOI: http://doi.org/10.1177/2153368719889093
• Subject Matter: Articles

Article

Youthful Discretion: Police

Selection Bias in Access

to Pre-Charge Diversion

Programs in Canada

Kanika Samuels-Wortley

1

Abstract

The increase use of formal youth diversion programs in Canada coincided with the

enactment of the Youth Criminal Justice Act in 2003. Following the tenets of the

labeling theory, the statute sought a balance that would help limit formal court

intervention to increase fairness and accountability for youth committing minor

offenses. Despite the perceived benefits, diversion programs have not escaped

criticism. Some researchers contend pre-charge diversion programs that are based

on police discretion may suffer from selection bias. Using police data from a local

police service (N¼6,479 cases) in Ontario, Canada, this article conducts a bivariate

analysis to explore the personal characteristics of first-time offending youth (gender,

race, and area of residence) and attempts to determine whether there are any

differences in the youth being charged or diverted for minor drug possession and

minor thefts. Results demonstrate variances in charging practices based on race.

Race has a small but statistically significant impact on arrest decisions. In general,

Blackyoutharemorelikelytobechargedand less likely to be cautioned than White

youth and youth from other racial backgrounds. The implications of these findings

are discussed.

Keywords

labeling theory, criminological theories, race and juvenile justice, race and policing,

juvenile courts, juvenile delinquency

1

University of Waterloo, Ontario, Canada

Corresponding Author:

Kanika Samuels-Wortley, 200 University Ave West, Waterloo, ON, Canada N2L 3G1.

Email: k2samuel@uwaterloo.ca

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DOI: 10.1177/2153368719889093

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2022, Vol. 12(2) 387–\ 410

Although limited, emerging research has consistently revealed that Indigenous and

Black adults are grossly overrepresented in the Canadian correctional system (Perry,

2011; Wortley & Owusu-Bempah, 2009). Similar to debates in the United States,

Canadian scholars, justice officials, and policy makers are now debating the extent to

which this overrepresentation is the result of racial bias within the criminal justice

system (Fitzgerald & Carrington, 2011; Tonry, 1994). Unfortunately, little empirical

research has explored potential biases within the Canadian youth criminal justice

system. Therefore, we do not yet know the extent to which differential treatment exists

within the youth system (Wortley & Owusu-Bempah, 2016). The enactment of the

Youth Criminal Justice Act (YCJA) in 2003 led to an increased use of structured youth

diversion programs in Canada as the statute sought a balance that would help limit

formal court intervention and increase fairness and accountability for youth com-

mitting minor offenses. As a result, police officers were encouraged to use formal

diversion programs (pre-charge diversion) for youth apprehended for minor crimes

(Marinos & Innocente, 2008).

Despite the perceived benefits of police using these alternative measures, some

researchers highlight selection bias as a potential problem during the decision-making

process (Talley, Rajack-Talley, & Tewksbury, 2005), which raises questions as to

whether all youth receive equal opportunity to take part in a diversion. For example,

previous research acknowledges that police play a “crucial role in determining the

numbers and types of juveniles appearing in juvenile courts” (Conly, 1978, p. 25), thus

exploring whether selection bias has an impact on who is channeled through the

criminal justice system may provide further insight into the overrepresentation of

racialized groups in the Canadian criminal justice system. While some researchers

view diversion programs as a mechanism to reduce the number of racialized youth in

the formal court system (Schlesinger, 2018), many scholars have raised concerns that

racial and gender bias may influence who is selected to take part in youth diversion

programs (Hockenberry & Puzzanchera, 2015; Kilkelly, 2011; Smyth, 2011). They

argue that decisions based on police discretion can lead to significant inconsistencies.

These concerns are significant within the Canadian context as police play a major role

in selecting youth who take part in diversion programs. Recent Canadian studies have

demonstrated that racialized groups within Canada perceive high levels of discrimi-

nation and bias within the criminal justice system (Cao, 2011, 2014; Sprott & Doob,

2014; Wortley, Macmillan, & Hagan, 1997; Wortley & Owusu-Bempah, 2009). It is

difficult, though, to explore whether there are significant racial disparities in arrest

decisions due to an informal ban on the collection of race-based crime statistics in

Canada. As a result, police services are not required to formally release the racial

characteristics of people who encounter police (Wortley, 1999).

To date, no Canadian study has examined police data to discern whether there are

patterns in terms of who is selected for pre-charge youth diversions. The following

analysis explores whether there may be selection bias within Canadian police youth

diversion programs.

1

Findings shed light on similarities and differences in the char-

acteristics of the youth who are selected to participate in a pre-charge diversion

program to those that go through the traditional court system. Researchers often claim

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