Pre-Trial Detention Under the Young Offenders Act: A Study of Urban Courts

Executive Summary

This report presents data on pre-trial detention and bail proceedings in five large urban areas from the last years of the Young Offenders Act. Data from youth court, police and Crown Attorney files on pre-trial detention practices in Halifax-Dartmouth, downtown Toronto and Scarborugh, Winnipeg, Edmonton, and downtown Vancouver and Surrey were collected and analysed. A random sample of 1,843 youth court cases was obtained for cases that had their first appearance dates between April 1, 1999 and March 31, 2000. This time frame was selected because most court and correctional processing would be completed by the time of data collection.

The objectives of this research are

  • to describe, in both quantitative and qualitative terms, the pre-trial detention experiences of young persons who come into conflict with the law;
  • to determine what factors affect pre-trial detention at arrest and detention by the court; and,
  • to find out if pre-trial detention affects the plea and the sentences imposed by the youth court.

Police Detention at Arrest

The police act as the primary gatekeepers to the pre-trial detention process although the courts (for fail to appear charges) and probation personnel (for failure to report or abide by other conditions they supervise) also play a part. Overall, 45 percent of young persons were arrested and detained by the police for a bail hearing. The range by court location was 28 to 56 percent [1].

With regard to the charges involved in detention processing, the police most often held young persons accused of indictable drug offences, indictable offences against the person, and offences against the administration of justice. A number of accused were held by police because there was a warrant out for their arrest, often because of an (alleged) offence against the administration of justice.

The more serious the current charge, the greater the likelihood that the accused was released on a police undertaking, which is the most "serious" form of police release.

About 13 percent of the total sample were released by police on conditions, most often not to communicate with victims or others and to avoid a specified area. The analysis of the factors affecting the selection of specific release conditions found few significant relationships between case and personal characteristics and each condition. We conclude that typical police practices may contribute to the selection of conditions imposed in police undertakings.

Grounds for Pre-trial Detention

In section 515, the Criminal Code of Canada sets out three grounds for pre-trial detention, two of which are pertinent to youth cases - to ensure the attendance of the youth at court (primary grounds) and to protect the public because of the likelihood that the person will re-offend if released (secondary grounds). The use of primary grounds was most pronounced in the study sample. The courts have interpreted primary grounds to include characteristics of the accused such as employment status, family relationships and permanence of living arrangements: what we have termed "socio-legal" characteristics of the young person. These characteristics address the extent to which the accused has "ties to the community" which are believed to reduce the risk of flight and increase the likelihood of court attendance when required.

The Judicial Interim Release Process

A person detained by the police should have a bail hearing within 24 hours or as soon as possible thereafter. Nine out ten cases met that standard and another five percent had a hearing within two calendar days of their arrest. We speculate that some or all of the remaining five percent whose first hearings were recorded three to five days after arrest may actually have had an earlier hearing but it was not noted in the court or Crown file.

The majority of young persons were released at their bail hearings. The proportions ranged from 52 to 75 percent, depending on the court. The most common form of release was an undertaking to appear except in Toronto where recognizances are typically used. The latter requires a surety, a friend or relative, willing to be responsible for the accused’s court attendance and often commit themselves financially. The "responsible person" provisions in the Young Offenders Act were infrequently used (6 to 13 percent) and never used in the Edmonton and the Toronto-area courts.

At most judicial interim release (JIR) proceedings, it is up to the Crown to show why the young person should be detained. Reverse onus cases, where the accused has to show why she or he should be released, typically arise when the young person is already on bail and is charged with another offence, or when the youth has failed to attend court or has not complied with release conditions. Up to 60 percent of cases involved reverse onus, although there were large differences among the courts.

A defence lawyer, either duty or retained counsel, was almost always present at JIR hearings.

The length of detention stays is best summarized by the median number of days detained (i.e., the midpoint of a distribution). In the sample overall, those who were not released until their case was completed were held in custody for a median of three weeks. Among these detainees, the longest stays occurred in Winnipeg (a median of 34 days) and the shortest in Surrey (a median of 6 days). Young persons who were released on bail had a median stay of one day.

The Crown attorney can release the accused on consent. Data on consent releases were not available to this research. Other research in the Toronto courts, adult and youth, has indicated that 60 percent or more of cases are released on consent.

The courts most often detained youth accused of indictable person offences other than robbery and other offences against the administration of justice, including fail to attend court (FTA) and fail to comply with an undertaking (FTC) as well as escape custody. Least often detained by the court were breaches of probation and hybrid, or less serious, offences against the person.

The conditions of bail release vary greatly by court and are almost certainly dependent on the "usual practices" in each location. For example, house arrest ranged from 0 percent in Surrey to almost 30 percent in the two Toronto youth courts; area restrictions ranged from 11 percent to 54 percent, depending on the court. The average number of release conditions also differed - Edmonton and Halifax cases had the fewest conditions and Toronto, Scarborough and Vancouver had the largest average number.

Researchers have often hypothesized that police recommendations play a large role in bail decisions. In Halifax and Toronto, where more detail on pre-trial detention was collected, the police suggested that 62 percent of the young persons be detained. Their recommendation was followed in just less than 50 percent of cases. Police recommendations on the release conditions were more successful: recommendations were followed in 60 to 80 percent of cases.

Violating Bail Conditions

Bail violations occur with some frequency. Among youth who had outstanding charges at the time of their entry into the study sample, one-third had an FTC/FTA charge. Among the persons who were released at their bail hearings, about 40 percent were later charged with failure to comply.

The curfew condition is most often violated. Residence-related conditions were the second most frequent category of conditions violated.

Multivariate Analysis of Factors Influencing Police Detention Decisions

Age affected police decisions in two courts but in opposite directions - older youth were more likely to be held in Halifax, whereas younger persons were held in downtown Vancouver. Race, being black or Aboriginal, was positively associated with police detention in Toronto. Those living with parents or other family were significantly less likely to be detained than were those in less conventional situations.

With regard to legal factors, several were significantly associated with detention by police although the type varied from court to court. In the total sample, more serious current charges, more current charges, more serious or numerous prior convictions, having a current bail violation, having an arrest warrant, more numerous outstanding charges and unconventional living arrangements increased the likelihood of being detained.

Multivariate Analysis of Factors Influencing Detention Decisions by the Youth Court

In the sample overall, more factors were related to detention: mention of primary or secondary grounds or both, having an indictable current charge, having a long and serious prior record, a current charge of fail to attend court or failure to comply with bail conditions, the number of outstanding charges, age (older) and unconventional living situations.

The prior offence history of the accused was more influential in bail decision-making by the youth court than were the characteristics of the current charges when the courts are analysed separately.

Multivariate analysis was also employed to determine the personal and case characteristics associated with specific release conditions. Being black or Aboriginal increased the likelihood of having a "do not communicate with the victim" and "do not carry or possess weapons" conditions, even when other factors were controlled. No factors explained the imposition of curfews, leading us to conclude that curfews are imposed for reasons other than the legal characteristics of the case. Since curfews so often precipitate bail charges, their use should be reconsidered by system decision-makers.

An examination of the role of race in Toronto bail decisions found that race predicted the use of recognizances versus other means of court release even when other factors were controlled. Because of their requirement for a surety, recognizances require that the young person have a resource in the community, a more burdensome requirement than undertakings. Race was marginally related to the number of bail conditions in the Toronto youth courts.

Pre-trial Detention by the Youth Court Has Negative Effects

Staying in pre-trial detention disadvantages the accused person both in terms of increasing the likelihood of pleading guilty, and hence being found guilty, and in terms of receiving a custodial sentence.

Multiple Stays in Detention

Earlier sections described the main features of the pre-trial detention experiences of the young persons who were detained by police at their arrest - that is, at the time of their instant charges (i.e., the charges that brought the youth into the sample). This section looks at all stays in detention throughout the court process.

With the exception of one court, more than one-half of the samples were detained one or more times if post-arrest detention stays are taken into consideration. Only 38 percent of the overall sample had no period in pre-trial detention. The more stays in detention is related to a the longer the court process likely probably because of the longer the period that the young person is "at risk" of being detained. About 70 percent of the police detentions after the youth’s initial arrest resulted from an offence against the administration of justice (FTA, FTC and probation breaches). Almost one-quarter occurred because the youth had allegedly committed a new substantive offence.

Secondly, we looked at whether the form and conditions of police and court release at the initial arrest of the sample were related to later periods in detention. If there are no relationships we may be able to assume that the form/conditions of release did not affect bail violations. The form of release by police at initial arrest had no relationship to the number of detention stays. The conditions of police undertakings were also unrelated. The type of court release was, however, associated with subsequent periods in detention - young persons released to a "responsible person" were more likely to return to detention than others. The main finding of the analysis of conditions of court release was that youth with a curfew were much more likely to have multiple detention stays than were those without a curfew. We conclude that curfew violations precipitate subsequent stays in detention.

Implications

Additional policy development on the relationships between bail conditions and the characteristics of the alleged offence should be considered. A second review could be the role of primary and secondary grounds in setting bail conditions. More education or information could perhaps help to change the "usual practices" of police and the courts, since some of these practices seem to generate the "revolving door" syndrome.


[1] Excluding the anomalous downtown Vancouver youth court where eight out of ten young persons were held for a bail hearing.

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