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Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper
III. Judicial Interim Release
This part of the paper summarizes law and research related to judicial interim release hearings (bail hearings) that deal with accused young persons. Issues for discussion are raised at several points throughout the summary of the law and research.
Under the provisions of the Criminal Code, a young person who has been detained by the police must be brought before a justice (a youth court judge or justice of the peace) without unreasonable delay and within 24 hours of the arrest or as soon as possible if a judge or justice of the peace is not available within the 24 hour period. As discussed above, within this time period, the peace officer or officer in charge may still release the young person under the Code provisions discussed above or "if satisfied that the young person should be released from custody"
conditionally or unconditionally (Criminal Code, section 503). This continuing authority of the police to release the young person may be particularly important for young persons who are facing delays in being brought before a justice.
As a general rule, there is a presumption that a young person who is brought before a justice should be released without conditions. The justice is required to order the release of the young person, unless the prosecutor “shows cause”
why detention of the youth is justified or another order under the Criminal Code, section 515, is justified. The grounds for detention, discussed below, are that detention is necessary: (1) to ensure that the young person attends court; (2) for public safety; or (3) to maintain confidence in the administration of justice.
If the justice does not order the release of the young person without conditions, he or she must, unless the prosecutor “shows cause”
why the detention of the young person is justified, order the release of the young person subject to:
- an undertaking with conditions;
- a recognizance with or without sureties in such amount and with such conditions as the justice directs; or
- a recognizance without sureties in such amount and with such conditions as the justice directs and the deposit of a sum of money or other valuable security as the justice directs.
Additional release provisions apply if the young person does not ordinarily reside in the province or within 200 kilometres of the place of detention.
A. Research
Before discussing specific provisions of the Criminal Code and the YCJA, this part of the paper reviews some of the available research on judicial interim release.
1.Appearance before a Justice
Research under the YOA suggests that it was not unusual for a young person to wait much longer than 24 hours to be brought before a justice. Such research raises questions about whether the rights of young persons were being respected and about the appropriate interpretation of the requirement that the young person be brought before the youth court judge or justice of the peace "without unreasonable delay." In addition to the Criminal Code time requirements, the Declaration of Principle in section 3 of the YCJA requires that those responsible for enforcing the Act must act with promptness and speed.
The YCJA Monitoring Study found that under the YCJA, all or almost all detained young persons had their first court appearance within three days (72 hours) of being arrested. The study is not clear about whether cases in excess of 24 hours were limited to those in which a justice was not available. The study found that there was little indication of delays longer than three days before the issue of detention was addressed by a justice.
Issues for discussion
- How long should it be possible to hold a young person before bringing the young person before a justice? Is it necessary to allow more than 24 hours?
- What should be the meaning of
“as soon as possible”
? If a justice is not available within 24 hours, should three days be considered a satisfactory length of time between arrest and first court appearance? - Should the seriousness of the charged offence be relevant to how long a young person may be held before being brought before a justice?
2. Numbers of Young Persons Detained
The Canadian Centre for Justice Statistics (CCJS) reported in its publication Youth Custody and Community Services in Canada, 2004-05 that remand (detention) admissions declined by 7% from 2003-04. There was substantial variation among the provinces and territories, with some jurisdictions reporting large decreases and some reporting large increases.
The rate of young persons in remand has remained unchanged at about 3% from the last year of the YOA (2002-03) to 2004-05. The remand rate refers to the number of young persons in remand per 10,000 young persons in the population. The average number of young persons in remand declined somewhat over the three years but the rate of remand remained stable because of a decrease in the youth population.
3. Jurisdictional Variation
The Pre-trial Detention Study found that there were vast differences among the courts in the percentage of young persons detained. The percentage of young persons detained by the court ranged from 26% to 48%.The jurisdictional variations could not be explained by differences in the social and legal characteristics of the young persons. Moyer concluded that the local legal culture, which includes the “usual practices”
of police, Crown attorneys, judges and justices of the peace, contributed to the differences by court location. The YCJA Monitoring Study found that considerable jurisdictional variation continued under the YCJA.
Although there may be explanations of jurisdictional variation that were not captured by the available data, the research raises questions about the local legal cultures and suggests that the “usual practices”
should be reviewed. As noted above with respect to police detention, it seems reasonable to expect that the chances of being detained should not be significantly different for two young persons who live in different cities, if their relevant circumstances are basically the same. These findings may also be reflecting the wide range of discretion and interpretation that is permitted under the Criminal Code provisions that govern detention and release decisions.
The YCJA narrows this discretion somewhat, particularly through the prohibition on the use of detention for child welfare purposes in s. 29(1) and the presumption against detention in s. 29(2). However, the Code provisions that are adopted by the YCJA continue to be open to various interpretations and decisions.
4. Length of Pre-trial Detention
A large percentage of detained young persons remain in detention for a significant period of time. In Youth Custody and Community Services in Canada, 2004-05, CCJS reported that about 52% of detained young persons were released within one week; about 28% spent between one week and one month in detention; and 19% spent between one month and six months in detention. The remainder, about 1%, spent more than six months in detention.
The YCJA Monitoring Study found that young persons who were detained by the court had, on average, detention stays of about 7 weeks under the YCJA. There was not a significant difference between the YOA and the YCJA in the length of detention.
5. Release on Crown Consent
The position of the Crown on whether a young person should be released is a major factor that influences judicial interim release decisions. The Pre-trial Detention Study notes that, although the justice is formally responsible for the bail decision, it is the Crown prosecutor who, in effect, makes most of the decisions to release. In her study of 118 bail hearings in Toronto, Varma found that in every case in which the prosecutor did not contest release, the young person was released by the justice (Varma, 2002).
The YCJA Monitoring Study found that, in the overall sample of court sites, 63% of young persons were released on Crown consent. This percentage did not represent a significant change from the YOA, under which 59% of young persons were released on Crown consent.
Under the YCJA, there were significant jurisdictional variations in the percentage of young persons released on Crown consent. For example, in Toronto, the Crown consented to release in 71% of cases while, in Winnipeg, the Crown consented to release in only 43% of cases. In addition, in comparison to the YOA, Crown consent increased under the YCJA in some courts and it decreased in other courts. For example, in Toronto Crown consent increased from 46% of cases under the YOA to 71% under the YCJA. In contrast, in Surrey, Crown consent decreased from 80% of cases under the YOA to 58% under the YCJA.
In the study entitled Crown Decision-Making under the YCJA, Moyer examined Crown decision-making in forty-nine bail cases in five youth courts in two provinces, British Columbia and Saskatchewan, in the first few months after the YCJA came into force. Moyer found that in both provinces Crowns consented to release in 44% of cases. This percentage is lower than the finding of 60% in Toronto in Varma’s research. Other findings from the study include:
- The Crown’s consent to release was influenced by having fewer current charges, having no outstanding charges, and no evidence of abuse of alcohol or drugs.
- Because of low numbers and because more than half of the most serious current charges were administration of justice offences, it was difficult to characterize the relationships between substantive offences (e.g., property offences; violent offences) and Crown consent.
“Meaningful consequences”
was cited in Crown consent cases in which the Crown believed that the arrest and overnight stay in detention had been sufficient to get“the attention”
of the young person.- The opinions of probation officers and, in Saskatchewan, Judicial Interim Release Program staff greatly influenced Crown decisions. In every case in which these personnel recommended release, the Crown agreed to release.
- Concrete release plans carry considerable weight even in cases that are on their face highly detainable.
- If the Crown had spoken to a parent or guardian, the Crown was much less likely to consent to the release of the young person. Typically, the parent wanted the young person
“locked up”
or labelled the young person as“out of control”
.
These findings highlight the importance of relevant information for the decision-makers at the bail stage. Both BC and Saskatchewan have programs that are consistent with the YCJA in that they increase the likelihood that young persons will be released rather than detained. These programs appear to be guided by provincial policies that encourage release. The Saskatchewan JIR program was independently evaluated a few years ago and found to be a highly successful model for reducing the use of pre-trial detention.
The findings also highlight the importance of parental views and their influence on whether the young person will be detained.
6. Other Factors Associated with Detention of Young Persons
It was noted earlier in the discussion of police detention that research does not indicate the specific legal basis on which police relied to detain young persons. Similarly, research does not provide information on the legal grounds on which justices rely in deciding to detain young persons. For example, research does not address how often justices detain young persons on the ground that detention is necessary for the safety of the public or the ground that detention is necessary to ensure that the young person will attend court. However, the research does report on other factors associated with the detention of young persons, including: the seriousness of the current charge; prior criminal record; the young person’s living arrangements; whether the young person is Aboriginal; and provincial policies and programs. 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 courts in making predictions about whether the young person would be a danger to public safety or appear in court. Research information on these factors includes the following:
Charges
The YCJA Monitoring Study found that under the YCJA young persons charged with an indictable offence were more likely to be detained than those charged with a summary or hybrid offence.
Most detained young persons (73%) are charged with non-violent offences and 37% of detained young persons are charged with a category of offences that mainly consists of administrative offences. In Youth Custody and Community Services, 2004-05, CCJS reported that the most serious charges against detained young persons were charges of committing the following offences:
“other Criminal Code offences”
, which mainly include administrative offences such as failure to appear in court and disorderly conduct - 37% of detained young persons.- violent offences - 27% of detained young persons;
- property offences - 26% of detained young persons; and
“other offences”
, which include drug-related offences and YCJA offences (e.g., failure to comply with an order) – 9% of detained young persons.
In Crown Decision-Making under the YCJA, Moyer found that in more than half of the cases, the most serious charge was an administration of justice offence. Breach of probation was the most serious charge in 40% of BC cases and in 10% of Saskatchewan cases. “Other administration of justice charges”
was the most serious charge category in about 33% of cases in both provinces.
The Pre-trial Detention Study found that justices most often detained young persons charged with indictable offences against the person and certain administration of justice offences, particularly failure to attend court and failure to comply with an undertaking.
Prior Record
The Pre-trial Detention Study found that the most significant factor related to court-ordered detention was the young person’s prior record. The longer and more serious the record, the more likely it was that the young person would be detained.
The YCJA Monitoring Study found that under the YCJA:
- young persons with a record of failing to comply with a non-custodial sentence were more likely to be detained than those with no such record; and
- young persons with a record of three of more prior findings of guilt were more likely to be detained than those with two or fewer prior findings of guilt.
Living arrangements
The Crown Decision-Making study found that in 33% of the BC bail cases the young person lived with a parent while in Saskatchewan 60% of the young persons in bail cases lived with a parent.
The Pre-Trial Detention study found that, like police detention, young persons in living arrangements that appeared to offer less potential for supervision were more likely to be detained by the justice, when all other factors were controlled.
Aboriginal young persons
In Youth Custody and Community Services, 2004-05, CCJS reported that Aboriginal young persons, who represent about 5% of the total youth population, accounted for 22% of all admissions to remand.
In Crown Decision-Making under the YCJA, 70% of the Saskatchewan bail cases involved Aboriginal young persons. 40% of the BC cases involved Aboriginal young persons.
More detailed analysis would be required to determine whether the over-representation of Aboriginal young persons in admissions to remand indicates discrimination against Aboriginal young persons. For example, the seriousness of the current charge, prior record, and instability of living arrangements may be the determining factors rather than the Aboriginal status of the young person.
It is noteworthy that 60% of the Aboriginal young persons in Saskatchewan who were detained by police and sent for a bail hearing were living with a parent. Although living with a parent might be thought to favour release to the parent rather than detention, it may, as noted above, have the opposite effect, depending on the parent’s view. It is also noteworthy that 75% of Aboriginal young persons in Saskatchewan who were detained by police and sent for a bail hearing were going to school or working, another factor that might be thought to favour release rather than detention.
Policies and Programs
The Crown Decision-Making Study found that:
- No provincial policies specifically on bail decision-making by Crown counsel under the YCJA were located by the researchers.
- Judicial interim release (JIR) programs were available in Saskatoon and Regina. The JIR programs supervise and monitor young persons while on bail. As mentioned above, Crowns placed considerable weight on the assessments prepared by JIR staff regarding the suitability of a young person for bail.
- British Columbia has developed policies for pre-bail enquiries. The enquiry is conducted by probation officers who report to the court on the factors, including alternatives to detention, relevant to the detention or release of the young person. The policy provides explicitly that lack of a suitable home is not a sufficient basis for detention. If a young person lacks a suitable home, the probation officer is directed to refer the case to a social worker, financial assistance worker or a community-based residence such as a youth hostel.
Provincial policies on bail decision-making can be an important tool in guiding the discretion of Crowns. Ideally, the policies should reflect a serious assessment of the validity of the common assumptions and “usual practices”
that Moyer found in her earlier study were the probable explanation of the significant jurisdictional variations in the use of pre-trial detention with young persons.
The JIR programs and pre-bail enquiries highlight the importance of information at the bail stage of the youth justice process. If these types of programs provide accurate information that is directly relevant to the grounds for detention, they can make a significant contribution to the quality of decision-making.
Summary
In summary, key findings from the research discussed above include:
- All or almost all detained young persons had their first court appearance within three days (72 hours) of being arrested.
- The rate of young persons in remand has remained unchanged from the last year of the YOA (2002-03) to 2004-05.
- There are large variations among the provinces and territories in the percentage of young persons detained by the courts.
- The average length of detention of young persons who were detained by the court was about 7 weeks.
- About 60% of young persons detained by the police and brought for a bail hearing were released on consent of the Crown. There were significant jurisdictional variations in the percentage of young persons released on Crown consent.
- Most detained young persons (73%) are charged with non-violent offences and 37% of detained young persons are charged with a category of offences which mainly consists of administrative offences.
- The most significant factor related to court-ordered detention was the young person’s prior record.
- Aboriginal young persons are over-represented in detention. They represent about 5% of the total youth population and account for 22% of all admissions to remand.
