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Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper
Introduction
Purpose
The purpose of this paper is to obtain feedback about the use of pre-trial detention and release of young persons under the Youth Criminal Justice Act (YCJA). The Department of Justice Canada is interested in receiving comments on the issues for discussion that are identified in this paper, as well as any other relevant issues, and suggestions as to what should be done to address the issues.
In order to facilitate discussion of the issues, the paper summarizes some of the relevant law, available research and other information on the detention and release of young persons. Due to the absence of research and statistics in some areas, a comprehensive picture of pre-trial detention of young persons is not possible at this time. Consultation with those who are involved in the youth justice system is important to helping to fill in some of the gaps in knowledge. Consultation can also help in the development of proposals for reform of policies, programs and legislation.
The appendix contains a consolidated list of issues for discussion that are identified in the paper as well as information on where to send comments.
Background
A fundamental principle of criminal law is that a young person accused of a criminal offence is presumed to be innocent and can not be punished until found guilty of an offence. However, the criminal law permits, in certain circumstances, the police and the court to detain an accused young person prior to a finding of guilt. Two main legal grounds that can justify detention prior to a finding of guilt are that detention is necessary to ensure that the young person appears in court and that detention is necessary for the protection or safety of the public.
The decision to order the pre-trial detention of a young person is a serious decision that not only deprives a presumed innocent young person of liberty but can also disrupt the young person’s education, employment, family life, and social and community involvement. Detention of a young person also increases his or her chances of being found guilty of the offence and being sentenced to custody if found guilty.
Prior to the coming into force of the YCJA in 2003, research indicated that there was a substantial increase in the use of pre-trial detention under the Young Offenders Act ( YOA). In passing the YCJA, Parliament intended to reduce the over-reliance on incarceration of young persons that had occurred under the YOA. There was also evidence of significant variation among provinces and territories in the use of pre-trial detention.
The increased use of pre-trial detention under the YOA and the negative consequences for young persons highlighted the need for restraint in the use of pre-trial detention. The YCJA introduced two major provisions related to pre-trial detention. Section 29(1) prohibits the use of pre-trial detention for social welfare purposes and s. 29(2) creates a rebuttable presumption that detention is not necessary for public safety if the young person, if found guilty, could not be sentenced to custody. These two pre-trial detention provisions specifically focus on the bail hearing stage of the process. The Act otherwise incorporates the relevant provisions of the Criminal Code related to pre-detention by police as well as the process and grounds for pre-trial detention to be applied at bail hearings.
Concerns about pre-trial detention
In the years since the YCJA came into force, there have been various concerns raised about pre-trial detention under the Act, including:
- Continued high use of pre-trial detention. Although the number of cases going to youth court has decreased significantly under the YCJA, the Canadian Centre for Justice Statistics (CCJS) has reported that the rate of detention of young persons has remained unchanged since the last year of the YOA (2002-03). This result suggests that Parliament’s objective of reducing the use of incarceration in the youth justice system is not being fully achieved with respect to pre-trial detention. The Heads of Corrections, a federal-provincial-territorial group of senior correctional officials, has expressed concern about the high rate of remand/pre-trial detention of young persons under the YCJA. Several members of another federal-provincial-territorial group, the Coordinating Committee of Senior Officials – Youth Justice, have expressed a similar concern.
- Nunn Commission. This provincial commission of inquiry was established in response to an incident in Nova Scotia in which a young person was released at a bail hearing on auto theft charges and then stole another vehicle and collided with another car. The collision resulted in the death of the driver of the other car. The commission made recommendations related to legislative provisions, provincial policies, programs and operational matters relating to arrest warrants, requests for transfers and communication protocols. The commission expressed concern that it is too difficult to detain young persons under the YCJA and recommended various legislative amendments to make it easier to detain more young persons. The commission interpreted the YCJA presumption against detention (s. 29(2)) not as a presumption that could be rebutted but rather as a prohibition that prevented the detention of young persons unless they could, if convicted, be sentenced to custody.
- High numbers of non-violent offenders detained . As noted above, one of Parliament’s objectives in passing the YCJA was to reduce the over-reliance on incarceration of non-violent young persons. CCJS has reported that a very high percentage of young persons are detained whose most serious charge is a non-violent offence, including a high percentage whose most serious charge is an administration of justice offence. This information, in contrast to the views of the Nunn Commission, raises the question of whether it is too easy to detain young persons charged with less serious offences.
- Jurisdictional Variation. Available research and statistics indicate large jurisdictional variation in the rate of young persons detained. The variation raises questions about whether the pre-trial detention provisions are being applied very differently across the country, depending on the province or territory.
- Use of detention for social welfare purposes. Despite the YCJA’s prohibition on the use of pre-trial detention for social welfare purposes, pre-trial detention appears to some extent to continue to be used to address social welfare needs of young persons. There is some evidence that detention and conditions of release have been imposed on young persons
“for their own good”
. - Conditions of release. If a young person is released rather than detained, it is highly likely that he or she will be required to comply with conditions of release. There is concern that too many conditions are imposed, that some conditions are unrelated to the risk that the young person is alleged to pose, and that some conditions are difficult to comply with, thereby
“setting up the young person for failure”
. Non-compliance with a condition, such as not attending school, is a criminal offence that not only adds to the criminal record of the young person but also increases the young person’s chances of being sentenced to custody.
