Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper

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Appendix – Consolidated List of Issues for Discussion

The following list contains the issues for discussion that are raised throughout the paper. In addition, the list includes issues related to conditions of detention, which is not an area specifically discussed in the paper. The Department of Justice Canada is interested in receiving comments on these issues as well as any other relevant issues, and suggestions as to what should be done to address the issues. Comments can be sent by email by September 17, 2007, to ptd-dap.consult@justice.gc.ca.

Comments may also be sent by mail to:

Youth Justice Policy
Department of Justice Canada
180 Elgin Street, 7 th Floor
Ottawa, Ontario
K1A 0H8

I. Pre-Trial Detention by Police

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?

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?

II. Judicial Interim Release

Appearance before a justice

• 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?

Primary ground: necessary to ensure attendance in court

• How likely must the non-attendance be? Should the law require that non-attendance be a substantial likelihood before detention or other restrictions can be imposed?
• Are valid assumptions and factors used in making the prediction that the young person will not attend court?
• What assumptions and factors should be relevant in determining whether the young person will attend court?
• What weight should be given to the seriousness of the offence that the young person has allegedly committed? Should the authority to detain on this ground be limited to relatively serious offences?
• How does the requirement of proportionality apply? For example, if there is a high risk that the young person will not attend court for a shoplifting charge, is detention a proportionate response? How should the objective of ensuring that the young person attends court be weighed against the deleterious effects of the young person’s detention, which could be for a period of several weeks?

Secondary ground: necessary for public safety

• How should “public safety” be defined? What types of harm should be considered as endangering public safety? What degree of harm should be required?
• Should the YCJA explicitly provide that detention is not permitted if it would be disproportionate to the seriousness of the offence that might be committed?
• 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?
• How should proportionality be determined? For example, if it is likely that a young person, if detained, will be detained for seven weeks, how serious must the predicted offence be for detention to be a proportionate response?
• Should the law permit the use of a “sliding scale” approach to substantial likelihood of committing an offence? That is, should there be a lower level of likelihood required if the predicted offence is serious and a higher level of likelihood required if the predicted offence is less serious?
• What factors should be relevant in making a detention decision based on a prediction that the young person will commit an offence if released? Should the factors pertain primarily to past criminal behaviour?

Tertiary ground: necessary to maintain confidence in the administration of justice

• Is the tertiary ground – “necessary to maintain confidence in the administration of justice” – too vague to be a ground for detaining a young person?

Detention as a “wake-up call”

• Should detention as a “wake-up call” be permitted? If not, how could it be prevented?
• Can the detention of a “nuisance offender” be justified under the secondary or tertiary ground?
• Should there be a separate ground for the detention of “nuisance offenders”?

Prohibition on detention for social welfare purposes

• What should be done to ensure that pre-trial detention of young persons is not used for the purpose of addressing the social welfare needs of young persons?

Presumption against detention

• Should the YCJA be amended to clarify that the presumption in s. 29(2) is a rebuttable presumption?
• Should the YCJA set out what is required to rebut the presumption in s. 29(2)?
• For purposes of pre-trial detention, should the definition of “violent offence” be amended to include conduct that endangers or is likely to endanger the life or safety of another person?
• For purposes of pre-trial detention, should “pattern of findings of guilt” be changed to “a pattern of offences,” or similar wording?
• Should the presumption against detention be broadened to include all of the grounds for detention - i.e., should the presumption apply not only to the public safety ground but also to the primary and tertiary grounds? If the alleged offence or prior record of a presumed-innocent young person is not serious enough to permit a custody sentence if the young person is found guilty, should it be presumed that the young person should not be detained at the pre-trial stage regardless of the specific ground relied on by the Crown?
• Should all provisions for the detention and release of young persons be contained in one part of the YCJA rather than in the Criminal Code and in the pre-trial detention and sentencing parts of the YCJA?

Conditions of release

• What additional information is available on conditions imposed by the courts?
• What additional information is available on how often young persons violate conditions of release and on the conditions that are most frequently violated?
• Should clearer direction be given in the legislation to ensure that greater restraint is exercised in the use of conditions of release?
• Should “other reasonable conditions” be replaced by a legislative provision that limits the types of conditions that may be imposed?
• Should the law prohibit conditions such as “obey the rules of the house”, “attend programs as specified by a probation officer” and other conditions that delegate the substance of conditions to other persons?
• Should the law permit conditions that require the young person to participate in rehabilitative or treatment programs prior to a finding of guilt?
• Should the legislation explicitly require that there be a direct connection between a condition and the risk that the young person is thought to pose? For example, should a curfew be permitted as a condition only if there is a reasonable basis to conclude that there is a substantial likelihood that the young person will commit an offence during the hours covered by the curfew?
• How do police enforce conditions of release imposed by the court? What policies guide police decision-making in this area?
• Are there program approaches that may be better than a charge as a means of dealing with some forms of non-compliant behaviour?

III. Conditions of Detention

More information is needed about:

• Where and under what conditions young persons are held in pre-trial detention, at the police stage, pending disposition of a judicial interim release hearing or following an order to detain.

• Policies and guidelines at the P/T or local level to govern the location or conditions of detention and to assist officials.

Legislative principles and standards governing detention:

• Should the YCJA, in accordance with the UN Convention on the Rights of the Child, prohibit placing young persons and adults in the same facilities for purposes of pre-trial detention?
• Should the YCJA extend to young persons at the pre-trial detention stage the following principles and standards applying to youth in sentenced custody: ensuring that detention is safe, fair and humane; the least restrictive measures are used; young persons retain the rights of other young persons (subject to necessary restriction as a consequence of a detention order); decisions are to be made in a forthright, fair and timely manner? Are there other rights and protections that the YCJA should extend to young persons held in pre-trial detention?
• Should the YCJA prohibit placing young persons held in pre-trial detention in the same facilities as young persons serving sentenced custody?
• Should the YCJA provide young persons with access to a review mechanism to ensure that their rights and protections while held in pre-trial detention are fully respected, and provide for appropriate remedies in cases where rights or protections may have been abused?
• Should the YCJA explicitly provide that young persons are guaranteed continued access to entitlements and necessities, such as education and health services?
• Should the YCJA provide that young persons are not required or expected to participate in therapeutic or rehabilitative measures while held in pre-trial detention; that young persons may refuse at any time in pre-trial detention to participate in such measures; and ensure that any participation in such measures by young persons while in pre-trial detention is fully voluntary?

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