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Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper
II. Pre-Trial Detention by Police
In order to have a clear understanding of pre-trial detention in the youth justice system, it is important to consider the law, policy and practice of police in relation to their decisions to detain or release young persons. Police are the gatekeepers to pre-trial detention in the youth justice system. If the police do not detain a young person, a bail hearing is not required. The initial police decision to detain a young person sets in motion further justice system processing and the involvement of other decision-makers in the youth justice system. The prosecutor must determine whether to consent to release of the young person or to seek continued detention. At a bail hearing, the youth court judge or justice of the peace must determine whether the young person will be released without conditions, released with conditions, or be detained.
It is clear, therefore, that understanding the police decision-making process is important to understanding why large numbers of young persons are detained or released with conditions not only at the police stage but also at judicial interim release hearings. Measures that address any problems that may exist at this early stage of the youth justice process may have a significant impact in addressing some of the concerns that have been raised about pre-trial detention in the youth justice system.
The authority of police to detain young persons is primarily contained in the Criminal Code. The YCJA provisions referred to above – the presumption against detention and the prohibition on detention for social welfare purposes - are not explicitly directed at police; however, police should take account of the provisions as well as the general principles and policy direction of the Act, which emphasize the importance of using the least restrictive alternative and reducing the use of incarceration.
This part of the paper reviews the law and research relating to police authority to detain and release young persons. It concludes with several issues for discussion.
A. Criminal Code Provisions
Police have broad authority under sections 495-503 of the Criminal Code to release young persons who have been arrested. The police do not have the authority to release the young person if the offence is a section 469 offence (murder, offences related to murder such as attempted murder, and other very rare offences such as treason and intimidating Parliament). For non-section 469 offences, which make up almost all youth court cases, the Criminal Code sets out rules on pre-trial release by the police that vary according to the type of offence involved and whether the arrest is with or without a warrant.
1. Arrest without a Warrant
Section 497 provides that, if a police officer arrests a young person without a warrant for
- an indictable offence listed in section 553 (certain less serious indictable offences such as theft of $5000 or less and breach of probation),
- a hybrid offence, or
- a summary conviction offence,
the police officer must release the young person as soon as is practicable unless the police officer believes on reasonable grounds that detention is “necessary in the public interest”
, having regard to all the circumstances including the need to
- establish the identity of the young person,
- secure evidence relating to the offence,
- prevent the commission of an offence, or
- ensure the safety of a victim or witness.
In addition, the police officer is not to release the young person if there are reasonable grounds to believe that the young person will fail to attend court. Once there is no longer a basis for not releasing the young person (e.g., the identity of the young person has been established), the police officer must release the young person. If the young person must be released, the police officer can obtain a summons or issue an appearance notice.
Most offences committed by young persons fall within the types of offences listed in section 497. Therefore, in most cases in which a young person is arrested without a warrant, the police are required to release the young person as soon as practicable, unless one of the grounds for detention, specified in section 497, is met.
2. Release by Officer in Charge if Arrest is without a Warrant
If the young person is not released by the police officer who has arrested the young person without a warrant for an offence listed in section 497, the officer in charge of the lock-up must release the young person as soon as practicable unless the officer in charge believes on reasonable grounds that it is “necessary in the public interest”
to detain the young person having regard to the circumstance mentioned in section 497 (e.g., the need to prevent the commission of an offence). In addition, the officer in charge must release the young person if the offence is one for which an adult would be liable to a maximum of five years imprisonment or less and none of the exceptions to release applies.
The officer in charge has a wider range of release options than the arresting officer has under s. 497. In addition to obtaining a summons, the officer in charge may release the young person on the basis of:
- the young person's promise to appear in court or
- a recognizance by which the young person agrees to pay an amount not greater than $500 on failing to appear in court.
Additional release provisions apply if the young person is not ordinarily resident in the province or does not ordinarily reside within 200 kilometres of the place of detention.
3. Arrest with a Warrant
Except in the case of an offence listed in s. 469, a judge or justice of the peace who issues an arrest warrant may, by endorsing the warrant, authorize the officer in charge to release the accused young person. If the warrant has been endorsed, the officer in charge may release the young person on a promise to appear or a recognizance not greater than $500. Additional release provisions apply if the young person is not a resident of the province or does not ordinarily reside within 200 kilometres of the place of detention.
The officer in charge can also require the young person to enter an undertaking in which the young person undertakes to do one or more of the several things listed in s. 499(2), which include:
- remaining within a specified territorial jurisdiction;
- abstaining from alcohol or drugs;
- reporting at specified times to a police officer or other designated person; and
- complying with any other condition that the officer in charge considers necessary to ensure the safety and security of any victim or witness to the alleged offence.
Under s. 145(5.1), a young person who fails to comply with a condition imposed by the officer in charge can be charged with an offence.
4. Release after Arrest with or without a Warrant
The Criminal Code provides an additional authority for police to release a person who has been arrested. Under section 503, a police officer or officer in charge may release any person charged with any offence (other than a s. 469 offence), whether the person is arrested with a warrant or without a warrant. Section 503(1) gives very broad discretion to the police by providing that the police officer or officer in charge may release the person if he or she “is satisfied that the person should be released from custody.”
The release may be with conditions or without conditions. Subsection 503(2.1) authorizes the police officer or officer in charge to impose the same types of release conditions that the officer in charge is permitted to impose under s. 499(2), mentioned above. A young person who fails to comply with a condition imposed by the police can be charged with an offence under s. 145(5.1).
