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

2. The Pre-Trial Detention Process (cont'd)

2. The Pre-Trial Detention Process (cont'd)

2.2 Grounds for Detention

Under the Young Offenders Act, judicial interim release, or bail, of young persons was primarily governed by the Criminal Code which in subsection 515(10) sets out three grounds on which an accused may be held in custody prior to trial. Using these grounds, it is in most cases up to the Crown to "show cause" why an accused’s detention is necessary prior to trial. Although ss. 515(10) provides criteria for release, it does not list the factors which may be taken into account. Case law has established what factors may be relevant [2]. Detention may be justified on the primary ground where the accused’s detention is necessary to ensure his or her attendance in court. Trotter (1999) defined the factors associated with primary grounds, which included:

  • the nature of the offence and potential penalty;
  • the strength of the evidence against the accused;
  • community ties of the accused;
  • the character of the accused;
  • the accused’s record of compliance with court orders on previous occasions;
  • the accused’s behaviour prior to apprehension; and,
  • evidence of flight.

Therefore, the indicators of attending, or not attending, future court dates include prior failures to attend court and ties to the community. For adults, ties to the community are often measured by stability in employment and residence, home ownership and family obligations. For young persons, community ties may be measured by whether the accused is attending school or is employed, the stability of his/her home situation, and whether parents or guardians are able to adequately supervise or "control" the young person. The following is an example of primary grounds from a police report:

The accused has no family, home or ties in Toronto. She has two convictions for fail to appear and two for fail to comply. She is on two separate probations which she completely ignores.

Secondary grounds justify detention because it is necessary for the protection or safety of the public, including a substantial likelihood that the accused will, if released, commit a criminal offence. According to Trotter (1999) factors associated with secondary grounds are:

  • criminal record;
  • whether the accused is already on bail or probation;
  • the type of offence - it has been suggested that a person charged with specific offences is more likely to commit further offences if released (e.g., break and enter, drugs) because they are crimes that are assumed to be closely related to the accused’s source of livelihood; and,
  • whether the accused is addicted to drugs or alcohol. [3]

Indicators include the length of the accused’s prior record and the type of prior convictions; similarity of past and present offences also indicates a propensity for future criminal acts. The Crown is required to provide a strong case of "very bad conduct" resulting in serious harm or the potential for serious harm. [4] The following quotation from a police report is an example of the way in which secondary grounds can be interpreted.

Accused has no lawful means of support. Has been arrested for trafficking in the past and for smoking drugs [marijuana] in a city park today. She will no doubt continue her drug-related activities if released.

Tertiary grounds refers to any other "just cause" being shown, where detention is necessary in order to maintain confidence in the administration of justice. The court is to consider the apparent strength of the prosecution's case, the gravity of the charge, the circumstances surrounding its commission and the potential for a lengthy jail term. To justify pre-trial detention on this ground, the Crown must show that the sensibilities of the community would be so affected that the accused's release could lead to "real harm to the administration of justice or to the accused". [5] When interviewed, Crown attorneys said that this ground is infrequently used in the youth court. Files of detained cases cited tertiary grounds in ten percent of cases.

The differences by court location in the mention of primary and secondary grounds found in Table 2.3 are remarkable and may be related as much to the usual practices of the police and Crown as to the "actual" behaviour of the young person. For example, almost half of the Winnipeg case files contained a mention that the youth would likely continue the criminal activity if released whereas in Edmonton, Vancouver and Surrey, this factor was almost never mentioned. Similarly almost one-half of Halifax-Dartmouth cases were labelled as "out of control" but elsewhere this categorization was quite rare.

Primary grounds predominated in Halifax, Toronto and Surrey. The mentions of primary and secondary grounds were roughly equal in Winnipeg and Edmonton. In Vancouver, mentions of secondary grounds outweighed primary grounds by a considerable margin.

Table 2.3

Bala (1994), citing Gandy’s (1992) study of bail in three Ontario communities in the 1980s (Gandy 1992), has written that youth were sometimes detained because of lack of accommodation, neglect, abuse or other child welfare reasons. This issue, that detention is used as substitute for child welfare beds, is of continuing concern to policy makers. Of the 51 cases in the overall sample where it was stated that the young person had no stable place to live, only 6 persons or 12 percent had no other grounds mentioned. This suggests that there may be relatively few youth detained only for child welfare reasons. Conversely, it is also possible that the flexibility of the interpretation of primary and secondary grounds is so great that other grounds can be readily found for youth with a previous offence history.

The distinction between the primary and secondary grounds for detention is blurred because the indicators for the two grounds are sometimes identical. This overlap has been described by Morgan and Henderson (1998). The use of the same factors suggests that "when they make a remand decision, decision-makers do not separate out the risk of failing to appear from the risk of re-offending, but rather make a judgement of the risk of whether either is likely". Golish (2003), a Windsor, Ontario lawyer, has made a similar point.

What is interesting is that the factors taken into consideration in any given case usually apply to both grounds. For instance, one can see how all the following factors will affect the decision to release or detain on both grounds: ties to the community; support of family and friends; work and school history, current employment or school enrolment; criminal record, its age, seriousness, etc.; and, the age of the accused or defendant, etc.

  • [2] Bail prediction studies are rare. No relevant research could be found that examined whether the "indicators" or "criteria" for primary and secondary grounds are valid predictors of attending court and committing an offence while on bail.
  • [3] This part of the secondary ground was upheld by the Supreme Court of Canada in R. v. Morales.
  • [4] Annotations on the grounds for detention (ss. 510(10)), Martin's Criminal Code, 2002.
  • [5] Ibid.
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