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Pre-Trial Detention Under the Youth Criminal Justice Act: A Consultation Paper
E. Conditions of Release
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. 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 judge or justice directs; or
- a recognizance without sureties in such amount and with such conditions as the judge or justice directs and the deposit of a sum of money or other valuable security.
As mentioned earlier, additional release provisions apply if the young person does not ordinarily reside in the province or within 200 kilometres of the place of detention.
Conditions that may be attached to a release order are listed in the Criminal Code, s. 515(4), and include:
- report at specified times to a peace officer or other person designated in the order;
- remain within a specified territorial jurisdiction;
- abstain from communicating with any person or going to any place specified in the order; and
- comply with "other reasonable conditions" specified in the order.
Discussions with practitioners indicate that, in practice, there is not a clear standard or test for imposing bail conditions. Some have suggested that the test should be based on the grounds for detention. For example, the secondary ground of “necessary for public safety”
can be used. If it is determined that imposing detention or release conditions is necessary for public safety, then conditions rather than detention should be used if the conditions would be sufficient to manage the risk to public safety.
Conditions of release are not to be punitive and they are not to be for the purpose of rehabilitation or treatment. They should have a rational connection to the ground for detention that is being addressed. For example, if the relevant ground is the protection or safety of the public, the condition that is imposed on the young person must be designed to neutralize the perceived danger to the public. The YCJA Monitoring Study found that, under the YCJA, 13% of release cases included a condition to “attend counselling, treatment or other residential program”
. Without more information, it is not clear whether this type of condition was rationally connected to public safety or ensuring attendance in court.
As noted above in relation to s. 29(1), it is often difficult to separate social welfare concerns from valid legal grounds for detention. A similar difficulty can arise regarding conditions of release. Certain conditions, such as requiring a young person to abstain from alcohol, may be of assistance to the young person and also be a tool to manage a risk to public safety. Discussions with practitioners, however, indicate that conditions are sometimes used solely as a social measure that is not related to the risk that the young person is thought to pose while on release. Depending on the circumstances of the case, examples may be conditions that require the young person to attend school or “obey the rules of the house”
or to comply with a curfew. It has also been noted that sometimes parents will refuse to take the young person home unless such conditions are imposed.
At least one experienced youth court judge has expressed the view that a condition requiring a youth to "obey house rules"
is too vague to be enforceable and inappropriately delegates the setting of conditions to parents or those who are in charge of the residence. It has also been reported that that very minor non-compliance with the rules of a group home (e.g., refusing to read a book) may be the basis for a breach charge against young persons in child welfare care.
There is evidence that, under the YOA, conditions that fell into the category of "other reasonable conditions"
had the effect of setting up young persons for failure. Failure to comply with a condition of release is a criminal offence, which may trigger a reverse onus situation that requires the youth to justify why he or she should not be detained. Conditions of release often pertain to behaviour that, outside the context of conditional release, is non-criminal behaviour. It is important to ensure that conditions are not excessive in number, not unnecessarily intrusive, directly related to one of the grounds for detention, and likely to be complied with by the youth.
The Oakes test, set out by the Supreme Court of Canada and summarized above, applies to the imposition of conditions of release as well as to the detention of a young person. Therefore, in assessing the appropriateness of a condition imposed on a young person, the following criteria must be met for the condition to be constitutionally valid:
- The condition must be rationally connected to one of the objectives of reducing the risk of failure to appear in court, reducing danger to the public, or maintaining public confidence in the administration of justice.
- The conditions, even if rationally connected to one of the objectives, should impair as little as possible the young person’s right to physical liberty.
- There must be proportionality between the effects of the conditions and the objective. The more severe the deleterious effects of a condition, the more important the objective must be if the condition is to be reasonable and demonstrably justified in a free and democratic society.
Research Findings on Conditions of Release
Despite the emphasis in the Criminal Code on releasing persons without any conditions, Varma’s study of 118 bail hearings under the YOA found that all of the young persons who were released were ordered to comply with conditions (Varma, 2002). The YCJA Monitoring Study contains a similar finding: about 98% of released young persons had conditions imposed by the justice. These findings raise the question of whether conditions are routinely imposed in cases in which conditions are not actually necessary to ensure public safety or that the young person will appear in court. As discussed below, whenever a condition of release is imposed, it creates the possibility of a breach of the condition and therefore a further charge against the young person, which increases the likelihood that he or she will be detained.
1. Jurisdictional Variation
The Pre-trial Detention Study found that there were vast differences among the courts regarding conditions of release. In many cases the jurisdictional variations could not be explained by differences in the social and legal characteristics of the young persons. The author concluded that the local legal culture, which includes the “usual practices”
of police, Crown attorneys, judges and justices of the peace, contributes to the differences by court location.
Examples of the jurisdictional variations that could not be explained by the available data included:
- The average number of bail conditions imposed on young persons ranged from 2.9 in the Edmonton court to 4.4 in Scarborough and Vancouver.
- The use of specific release conditions also varied considerably. Depending on the court, conditions that restricted the areas to which the young persons could go were imposed on 11% to 54% of released young persons; not possessing a firearm or weapon was imposed on 1% to 48% of released young persons; and reporting to police or a probation officer was imposed on 0% (Scarborough) to 93% ( Vancouver).
As with the research on decisions to detain young persons, these findings on conditions raise questions about the local legal cultures and suggest that the “usual practices”
should be reviewed.
2. Release Conditions Imposed
The following table from the YCJA Monitoring Study indicates the types of release conditions imposed and the percentage of release cases in which each condition was included in the release order:
|
YOA sample |
YCJA sample |
|
|---|---|---|
|
% of court-released cases with each condition |
||
Non-communication with victim |
27.4 |
32.3 |
Non-communication with other person |
41.6 |
41.5 |
Report to police/other regularly |
31.0 |
36.7 |
Attend school or obtain, maintain employment |
28.7 |
28.5 |
Abstain from alcohol, non-prescription drugs |
22.3 |
24.4 |
No weapons |
21.6 |
41.0 |
Curfew |
54.2 |
39.5 |
House arrest |
11.1 |
16.6 |
Attend counselling, treatment or other residential program |
10.3 |
13.0 |
Total number of cases with court release conditions |
467 |
537 |
Note: The shaded areas indicate a statistically significant difference between the YOA sample and the YCJA sample.
The Study also found that many bail conditions imposed were seemingly unrelated to the offence charged.
3. Bail Conditions Breached and Charged
The YCJA Monitoring Study found that charges involving bail violations increased from 31% under the YOA to 37% under the YCJA. The most common bail violation charges under the YCJA were failure to attend court and failure to attend at the police station for fingerprinting (30% of charges). Curfew violations were the second most common reason for the laying of a bail violation charge (20% of charges).
The Pre-trial Detention Study found that the condition that was most frequently violated was a curfew. Approximately one-third of young persons who were released with a curfew condition were charged with breaching that curfew. The next most frequently violated conditions were “reside”
conditions and “keep the peace and be of good behaviour”
.
Again, these findings suggest the need to look carefully at the substance of conditions, the number of conditions imposed, and whether the conditions are relevant to the risk that the young person is thought to pose. In particular, if one out of three curfew conditions will be violated, it is important to consider whether there is a rational basis for believing that a curfew is necessary and directly related to ensuring that the young person appears in court or to protecting the public.
It is also important to consider the approach of police when they become aware of a violation of a condition of release. As discussed above under Police Detention, the Police Discretion Study found that under the YOA police exercised very little discretion regarding charging young persons with administration of justice offences, such as breaches of conditions of release. 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. More recent statistics indicate that a high rate of charging for administration of justice offences has continued under the YCJA.
Issues for discussion:
- What additional information is available on conditions imposed by justices?
- 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 a justice? 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?
References
Research Reports, Books and Articles
