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Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper
B. Research on Police Detention of Young Persons
Despite the significance of the decisions by police to detain, there is very little research information about police detention of young persons. However, some information is available from the following research reports prepared for Youth Justice Policy, Department of Justice Canada:
- YCJA Monitoring Study. This study by Sharon Moyer reviewed police, court and correctional files from the first full year of the YCJA, 2003-04, in seven courts in five cities: Vancouver, Edmonton, Winnipeg, Toronto and Halifax. The findings were compared to a baseline year under the YOA, 1999-2000. One part of the study addressed pre-trial detention.
- Pre-trial Detention under the Young Offenders Act: A Study of Urban Courts. This study by Sharon Moyer reviewed police, court and correctional files related to pre-trial detention from one of the last years of the YOA, 1999-2000, in the same seven courts used in the YCJA Monitoring Study. It provides a baseline against which the experience under the YCJA can be compared. This study will be referred to in this paper as the Pre-trial Detention Study.
- Police Discretion with Young Offenders. This study by Peter Carrington and Jennifer Schulenberg is probably the most comprehensive study of police discretion with young offenders ever conducted in Canada. It was carried out in the last couple of years of the YOA. It contains an analysis of available statistics on police decision-making as well as the results of interviews with police at approximately 100 police services throughout Canada. This study will be referred to in this paper as the Police Discretion Study.
1. Percentage of Arrested Young Persons Detained by Police
The percentage of cases in which an arrested young person was detained by the police appears to have increased under the YCJA. The YCJA Monitoring Study found that under the YOA, 45 percent of arrested youths were detained by police, compared to 55 percent under the YCJA.
The chances of being detained by police appear to depend to a great extent on which police force apprehends a young person. The Pre-trial Detention Study found there were vast differences among police forces in the percentage of young persons detained by police. The percentage of young persons detained by the police ranged from 28% to 79%. Vancouver was the highest and Toronto was the next highest (56%). The jurisdictional variation could not be explained by differences in the social and legal characteristics (e.g., offence; previous offences) of the young persons. Moyer concluded that the local legal culture, which includes the “usual practices”
of police, contributed to the differences among the various sites included in the study.
Although there may be explanations of jurisdictional variation that were not captured by the available data, the study raises questions about the local legal cultures and suggests that the “usual practices”
of police should be reviewed. It seems reasonable to expect that the chances of being detained by the police should not be significantly different for two young persons who live in different cities, if their relevant circumstances are basically the same. These findings also reflect the wide range of discretion and interpretation that is permitted under the wording of the Criminal Code provisions that govern detention and release decisions of the police.
3. Factors Associated with Police Detention of Young Persons
Research does not indicate the legal basis on which the police relied in deciding to detain young persons. For example, an important gap in the research is that it does not address how often the police detained young persons to prevent the commission of another offence or to ensure that young persons would attend court. However, the research does report on other factors associated with the police decision to detain, such as the seriousness of the charge. It is important to keep in mind that these other factors do not necessarily provide a legal basis for the detention of young persons, but they may have been used by police in making predictions about whether the young person would commit an offence or appear in court.
According to the Pre-trial Detention Study, factors that had the strongest relationship to police detention were the seriousness of the charge, the number of charges, and prior offences. Young persons charged with indictable drug offences were most likely to be detained (84%), followed by indictable offences against the person (76%). However, next most likely to be detained were young persons charged with administration of justice offences, excluding breaches of probation (73%). Of the social and social-legal characteristics of young persons, only unconventional living arrangements, including having no fixed address, increased the probability of being detained by police.
The YCJA Monitoring Study found that young persons who were charged with a violent offence or who had prior findings of guilt were more likely to be detained by police under the YCJA than under the YOA. Other findings indicated that some less serious offenders were more likely to be detained by the police under the YCJA than under the YOA, including those without an indictable offence; those with no violence in their case; and those with less serious offence histories (two or fewer prior guilty findings).
4. Reasons Given by Police for Detaining Young Persons
The Police Discretion Study found three categories of reasons used by police for not releasing young persons and detaining them until a judicial interim release hearing is held:
- Law enforcement: e.g., establishing identity; ensuring attendance at court; and preventing the commission of an offence;
“Detention for the good of the youth”
: e.g., youths who are prostitutes or who do not have a safe home to go to.- Sanction: use of detention as a sanction, or meaningful consequence, for a young person’s offence.
This study raises concerns about police practice. Two of the three reasons given by police for detaining young persons – detention as a sanction for the offence and detention for the good of the youth - are not legal grounds for detention. The general principle of the law on pre-trial detention is that a young person should not be held in detention unless there is a specific reason in the law that permits the detention. As discussed above, the specific reasons are contained in the Criminal Code. The reasons listed in the Code do not include punishing or holding the youth accountable for the offence that he or she is alleged to have committed. In addition, they do not include “detention for the good of the youth”
.
If a young person is released following arrest and police detention, the Police Discretion Study found that most officers prefer the promise to appear as the method of release because they can include an undertaking which sets out conditions with which the young person must comply. Police officers “see these conditions as relatively precise, immediate, enforceable constraints on the young person’s future behaviour, and immediate, concrete consequences (sanctions) for the youth’s criminal act.”
This finding raises additional concerns about police practice. The use of release conditions as immediate sanctions imposed by the police for the youth’s alleged offence is not authorized under the Criminal Code or the YCJA. The conditions of release must relate to one of the legislated grounds in the Criminal Code. Imposing sanctions for the offence is the responsibility of a judge, not the police, after a finding of guilt.
The Pre-trial Detention Study found that if a young person was released by the police, the type of police release was associated with the seriousness of the offence. The more serious the offence, the more likely it was that the young person was given a police undertaking, which can include conditions, rather than less serious types of release such as an appearance notice or summons.
In comparing the YOA and YCJA, the YCJA Monitoring Study found that the police typically imposed more onerous release mechanisms under the YCJA than under the YOA. Because most police undertakings entail conditions, they are viewed as more onerous than other forms of police release. There were marked increases under the YCJA in the percentage of youth released on an undertaking.
The number of conditions imposed on young persons that were released on police undertakings increased in the YCJA group in comparison to the YOA group. Under the YCJA, not only were more youth detained and more youth released on undertakings, they also received more conditions of release.
The Pre-trial Detention Study found that, in general, there was not a relationship between social and legal factors and specific conditions that were imposed by the police. Moyer suggests that the conditions imposed may be determined primarily by the local “usual practices”
, rather than the seriousness of the offence or the risk that the police may believe that the young person represents.
The Police Discretion Study surveyed police agencies as to which conditions they imposed. The most commonly imposed conditions were:
“no go”
- restricting a young person from going to a certain place or area (26% of police agencies).non-association – restricting a young person from coming into contact with certain specified individuals (36% of police agencies).
keep the peace and be of good behaviour (24% of police agencies). Many officers noted that this condition can mean
“almost anything”
.no alcohol or drugs (19% of police agencies).
no weapons (2% of police agencies).
curfew (34% of police agencies). Many officers stated that they do not have the legal authority to impose a curfew but some officers did so anyway.
attend school (6% of police agencies).
unspecified conditions (56% of police agencies).
The Police Discretion Study also found that there had been a 600% increase in administration of justice offences (e.g., breaches of conditions of release) under the YOA and that police exercise very little discretion regarding charging young persons with such offences. According to the study, police charged young persons with administration of justice offences at a higher rate than the rate for any other offence except murder. The authors concluded that police have contributed to the “epidemic”
of administration of justice offences by the number and type of release conditions that they impose. More recent statistics indicate that a high rate of charging for administration of justice offences has continued under the YCJA.
7. Restrictions on Arrest and Detention
In a recent study entitled, Controlling a Jail Population by Partially Closing the Front Door: An Evaluation of a “Summons in Lieu of Arrest”
Policy, Baumer and Adams reported that a county in the U.S. had some success in reducing its high rate of pre-trial detention by changing the rules regarding who could be arrested and detained (Baumer and Adams, 2006). The county was under a U.S. federal court order to control its jail population. In response to the order, the county court established rules that required the police to use a summons for certain non-violent offences. The police were not permitted to arrest a person for these offences. In addition, if the police brought a person charged with one of these offences to the detention facility, the officials at the detention facility were authorized to refuse to detain the person. The study suggests that an effective way to reduce the use of pre-trial detention may be to establish clear rules that specify
that persons charged with certain less serious offences can not be arrested or detained.
Summary
In summary, key findings from the research discussed above include:
- The percentage of arrested young persons who are detained by the police appears to have increased under the YCJA.
- There are large differences among police forces in the percentage of young persons detained by police. The local legal culture, which includes the
“usual practices”
of police, appears to have contributed to the differences. - Young persons who were charged with a violent offence or who had prior findings of guilt were more likely to be detained by police under the YCJA than under the YOA.
- Some less serious offenders were more likely to be detained by the police under the YCJA than under the YOA.
- Police have indicated that they detain young persons not only for law enforcement purposes but also for the purposes of imposing an immediate sanction on the young person and
“for the good of the youth”
. - If a young person was released by the police, the type of police release was associated with the seriousness of the offence.
- The police typically imposed more conditions and used more onerous release mechanisms under the YCJA than under the YOA.
- There was not a relationship between social and legal factors and specific conditions that were imposed by the police.
- Police exercise very little discretion regarding charging young persons with administration of justice offences (e.g., breaches of conditions). Police charged young persons with administration of justice offences at a higher rate than the rate for any other offence except murder.
- A way to reduce the use of pre-trial detention may be to establish clear rules that specify that persons charged with certain less serious offences can not be arrested or detained.
More information is needed about:
- Reasons for the apparent increase under the YCJA in the percentage of young persons detained by police.
- The basis on which young persons are detained or released by police.
- Reasons for the apparently large provincial variation in the use of pre-trial detention by police.
- Provincial and local policies and guidelines to assist police officers in making detention and release decisions.
- The extent to which young persons are detained by police and then released prior to appearing before a justice.
- The enforcement by police of conditions of release.
Grounds for detention
- Does the Criminal Code provide sufficient structure and guidance for the discretion exercised by police in determining whether to detain or release a young person?
- As noted above, the Morales decision of the Supreme Court of Canada struck down the
“public interest”
ground of the Criminal Code’s judicial interim release provisions because it was a vague and imprecise basis for detaining a person. Should“public interest”
be removed from the other sections of the Code (e.g., s. 497; s. 498) in which“public interest”
is a basis for the police decision to detain a young person? - What should be the grounds for police detention of young persons? Are the current grounds satisfactory?
- As a means of reducing the use of pre-trial detention, should the YCJA provide that young persons charged with certain less serious, non-violent offences may not be detained?
- What assumptions and factors are used by police in making predictions about whether a young person will commit an offence or appear in court? Are the assumptions valid? Should the law specify the factors that should be taken into account in making these predictions?
- How likely should the predicted commission of an offence be to justify a police decision to detain a young person? Should there be a
“substantial likelihood”
that the offence will be committed, which is the wording used in the part of the Criminal Code that applies to judicial interim release hearings? - Should the risk that a young person will commit any offence, including a relatively minor offence, be sufficient to detain the young person? Or, should the authority to detain on the basis of a risk of committing an offence be limited to the risk that a relatively serious offence may be committed? Is detention a disproportionate response to the risk that the young person may commit a relatively minor offence?
- Should the risk that a young person may not appear in court be sufficient to detain a young person regardless of the seriousness of the charged offence? Or, should the authority to detain on this ground be limited to relatively serious offences?
- Should the YCJA explicitly provide that detention is permitted only if the requirements of the Oakes case are met (e.g., the adverse effects of detention on the young person are not disproportionate to the danger to the public or to the seriousness of the risk of the young person not appearing in court)?
- As mentioned above, s. 503 of the Criminal Code provides 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.”
On what basis should a police officer determine whether or not he or she is satisfied? - Should police be permitted to detain young persons as a means of imposing immediate sanctions for the alleged offence?
Release and Conditions of release
- When a police officer decides that a young person should be released rather than detained, what should be the test for determining whether conditions of release may be imposed?
- Should the YCJA explicitly provide that the conditions must meet the requirements of the Oakes test (e.g., a rational connection between the condition of release and the risk that the young person is thought to pose)?
- What conditions should police be authorized to impose?
- Should conditions such as
“keep the peace and be of good behaviour”
be prohibited because of lack of clarity and precision? - How can the number of charges for administration of justice offences, such as breaches of conditions of release, be reduced?
- Should the YCJA more clearly require that extrajudicial measures, rather than a charge, be considered or presumed when there is a breach of a condition of release?
YCJA provisions
- Should the YCJA explicitly provide that the presumption against detention in s. 29(2) applies to police detention as well as detention decisions at bail hearings?
- Should the YCJA explicitly provide that the prohibition on detention for social welfare purposes in s. 29(1) applies to police detention as well as to detention decisions at bail hearings?
- Should all provisions for the detention and release of young persons by police be contained in the YCJA rather than the Criminal Code?
