Crown Decision-Making Under the Youth Criminal Justice Act

Bail Decision-making by Crown Counsel (continued)

5. Characteristics of Bail Cases

Three out of ten cases involved females. Almost six out of ten of the bail decisions had accused young persons of 16 years or more and the average ages of the provincial samples were identical (16 years). Seven out of ten of Saskatchewan and four out of ten B.C. young persons were of Aboriginal origin. In terms of social characteristics, only one-third of B.C. cases lived with one or two parents; in contrast, almost 60 percent of Saskatchewan cases lived with a parent. B.C. youth were also much more likely to be “inactive” – not working or going to school – than were those from Saskatchewan (64 versus 25 percent). Therefore, police-detained youth in Saskatchewan had more stable or conventional lives than did those in British Columbia. This is probably partly because the downtown Vancouver youth court deals with young persons from the Downtown Eastside and other inner city areas.

With regard to the most serious current charge, there were large differences between Saskatchewan and British Columbia cases. Four out of ten B.C. cases had a probation breach as the most serious charge, compared to only one out of ten in Saskatchewan. The proportion of other administration of justice charges was similar in the two provinces, at about 31-33 percent. One-fifth of cases had a less serious (hybrid) property charge as the most serious charge. Six percent of cases involved an indictable offence against the person. By far the most serious incident in the bail sample was a home invasion (described below).

Three-quarters of the Saskatchewan but only one-quarter of the B.C. cases had outstanding charges (p=.001). Because of this factor, the average number of current and outstanding charges (combined) in Saskatchewan was 6.4 compared to 2.7 charges per person in British Columbia.[27]

Almost eight out of ten cases in Saskatchewan were reverse onus because of current or outstanding charges of failure to attend court or failure to abide by bail conditions. This can be compared to only one-quarter of British Columbia cases. As indicated above, in B.C. probation breaches were most common. The practice of not charging young persons who had failed to attend court or not complied with bail was observed in Vancouver ; in that court, these cases were brought in for a bail review, but were not always charged with fail to comply or fail to attend court. For the purposes of this analysis, however, we have described these cases as having been “charged” with a bail violation.

Two-thirds of the sample had prior convictions and there was no difference by province. Only 10 percent had no current involvement with the justice system. No British Columbia bail case had prior Alternative Measures. Three out of ten Saskatchewan young persons had received Alternative Measures or Extrajudicial Sanctions in the past.

6. Factors Related to Consent Releases

Social Characteristics

There were few noticeable demographic or social differences between persons who the Crown released on consent and those where she or he recommended continued detention. Sex, age and Aboriginal status did not differ. Whether the young person was active (at school or working) showed no relationship to Crown consent. Curiously, youth who were living with one or two parents were slightly less likely to be released on consent than were young persons in less conventional living arrangements. There was an indication that a smaller percentage of youth labelled substance abusers were released (35 percent of abusers versus 48 percent of non-abusers were released by the Crown).

The Crown prosecutors observed in this research were aware of and for the most part complied with the prohibition against detention for social welfare and child protection reasons. For example, a 13 year old was charged with failure to comply with bail conditions – being out of the jurisdiction and associating with a no-contact. The original offence was a “serious” assault. The girl, who had been a ward since early childhood, allegedly had a serious anger management problem and psychological disorders. The Crown said, “in a regular family she would be grounded. I don't think she should be in court. This is not our policy, just what I feel”. She was released on Crown consent.

Sometimes the extent of influence of social factors on the bail decision of the Crown is uncertain because of the accused's offence history: a substantial number of youth in troubled social situations also have an extensive history of administration of justice and other offences, which would make them liable for pre-trial detention. The difficulty of determining whether detention is being used for social measures can be illustrated by the following examples.

A young woman who had disappeared from her foster home thereby violating her residence condition of probation was deemed unsuitable for detention by the Crown. “Under the new Act she can't be held for breaching (sic); nor can I hold her for social services circumstances, so if this were to go to show cause, I wouldn't get it.” A youth worker had initially told the Crown that the girl could not be released because there was no available residence. The girl was referred to social services under s. 35;[28] the Crown recommended that she report to a youth worker immediately and abide by her residence condition.

A 16 year old was picked up by police because she was past her curfew and with her best friend with whom she was not supposed to be in contact (a condition of intensive supervision). The two had been co-accused in an earlier incident where they “had gone after some girls together”. Her foster parent said she suffers from severe post-traumatic stress syndrome because she had been sexually abused. She had been in 41 placements. She taunted the police, “go ahead and arrest me”, said she would continue seeing her best friend, the law is stupid, and it should not apply to her. Described as a “breach baby” and a “frequent flyer” by the Crown, she had received custody for her last four breaches. The Crown said that she fit both the primary and secondary grounds for detention. Defence argued that her best friend “was her support in life” and asked for her release. The court ordered her detained.

A sex worker, an intravenous drug user, was arrested for stealing $200 worth of goods from a department store when she was under the influence of morphine. The 17 year old had been treated for substance abuse twice as an inpatient, and she was currently on the caseload of a program that helps sex workers. She had no fixed address. Six months earlier she had been convicted of assault and mischief and placed on probation. Since then, she had accumulated four administration of justice convictions, including failure to attend court. The Crown recommended detention on the primary ground and the recommendation was accepted by the court.

Legal Characteristics

At the bivariate level of analysis, young persons with four or more current charges, those with outstanding charges, and those accused of property and victimless crimes were less likely to result in a consent release from pre-trial detention. The presence or number of prior convictions bore no relationship to release by the Crown prosecutor. However, interviews suggested that offence history and the presence of outstanding bail violations can affect decisions by the Crown. The dates of prior offences are examined to determine if the youth shows a pattern of criminal behaviour; the more recent the offence, the greater the likelihood that the Crown will draw negative conclusions (unless there are extenuating circumstances). A history of violence is also considered a warning signal. For example, a Crown counsel released a male with a “lot of offences but not a violent record”; “he can live safely in the community”.

Because of low numbers and because more than one-half of the “most serious” current charges were administration of justice offences, it is difficult to characterize the relationships between substantive offences and Crown consent. Proportionately fewer property offences were released than were other offence categories, including violent offences. This relationship disappeared when other factors were introduced as controls (see section on multivariate analysis).

Other Legal Factors

The attitudes of community members were rarely mentioned as affecting consent releases. In one case, however, the Crown stated that, in a home invasion, “the public would be outraged if he were released”. The youth had no prior record, ties to the community, a stable home life, a release plan, and an indication that his mother would sign a surety. In court, defence argued for “responsible person” provision, and the judge adjourned the case for a pre-bail conference and a bail enquiry by a probation officer.

The quality of the evidence against the accused can play a part. A Crown released a 13 year old charged with possession of burglary tools on consent saying that he did so because the youth had no record. He did have outstanding charges and bail violations and the case was reverse onus. The Crown said that the “charge was a little iffy”, probably because the youth's bag had been illegally searched.

“Meaningful consequences” were cited in situations where the Crown believed the arrest and overnight stay in detention was sufficient to get “the attention” of the young person.

Alternatives to Detention

Homeless youth and those who cannot be returned to their home or placement present special problems to the youth justice system. The challenge is especially pronounced in Saskatchewan where the upper age limit for child protection intervention is 16 and referral to the child welfare authorities is not usually an option.

The typical pattern for the homeless in all age groups is that the bail hearing is adjourned until a workable release plan can be developed. Depending on the circumstances, the plan is arranged by child welfare, probation or defence counsel – or a combination thereof.

The responsible person provisions in s. 31 were not used for young persons in the study sample. A Crown in B.C. said

I find that the YCJA is very clear on when it is or isn't appropriate to seek the detention of the youth. There is not a lot of negotiation with defence because by the time you're seeking detention you're on a solid ground. My practice is not to use a 31 as a negotiation. Infrequently, I say I am going for detention and then defence says ‘I have this person who will sign for the kid'. Then I might sign over.

Program Availability

The opinions of probation officers and in Saskatchewan JIR Program staff[29] greatly influence Crown decisions. In every case, if these personnel recommended release, the Crown agreed to release. A Saskatchewan Crown said, “if JIR is willing to supervise, I will let him out for sure”. In another case, the first Crown said he would not release a youth accused of robbery involving a bicycle; the next day a second Crown spoke to the JIR worker who said, “we haven't had any problems with him, he's doing good” and subsequently released the youth. Alternative to custody programs were rarely if ever mentioned by B.C. Crown prosecutors.

Concrete release plans carry considerable weight even in cases that are on the face of it, highly detainable. In British Columbia, probation arranged for treatment for a substance abuser who had been reported missing 60 times and had a dozen convictions for breach of probation. The probation officer stated that he would receive 24 hour supervision until he left for the treatment facility. The Crown had initially decided to request a detention order (“nothing will keep this kid from breaching except custody”) but reversed the decision after speaking to the probation officer.

In another example, the Intensive Support and Supervision Program probation officer supported a consent release for a female who had breached her abstention and curfew conditions. Her staying out late and drinking “were in direct relation to her home life [with her mother]”. Probation arranged a group home placement and an Aboriginal substance abuse program for her and the Crown agreed to release.

Interestingly, if the Crown had spoken to a parent or guardian, the young person was much less likely to be released on consent. An examination of the files shows that this is typically because the parent “wants the child locked up” or labels the youth as “out of control”. About one-quarter of the bail cases involved Crown-parent (or guardian) contact.

Idiosyncratic Decision-making

Some apparently idiosyncratic decisions were observed. A Crown mentioned his own “third strike rule”. A youth twice violated conditions of release on his theft auto charges, but when he was caught a third time, the Crown did not consent to release him.

A 17 year old Aboriginal youth was charged with failure to attend court and assault with a weapon against his sister. The two had fought over a pair of pants and the accused tried to cut the pants off, resulting in a very small cut. He had no prior record, although he did have an outstanding charge of uttering threats. The Crown recommended detention because the offence was violent and there were both primary and secondary grounds.

There may be some confusion in the interpretation of the bail provisions in the YCJA and their relationship to those in the Criminal Code. An earlier quote referring to the inability to detain because a youth's charges were breach-related. Another Crown stated, “ I don't think I can hold him because all he has is a lot of system generated charges”. This young person had three current bail violations, two outstanding bail violations and an outstanding credit card fraud. This view was not held by other Crown counsel. In the sample overall, one-half of cases where the only charges were bail violations were not released on consent.

In summary, there may be confusion about the relationship between the Criminal Code bail provisions and those in the YCJA. As case law develops, this confusion should decrease.

Variable Unstandardized coefficients t value Significance
  B Std. error
Constant 1.384 .220 6.301 .000
Any substance abuse (no/yes) .311 .134 2.330 .025
Any outstanding charges (no/yes) .332 .132 2.512 .016
Number of current charges (1-3 vs.4-12) .528 .159 3.323 .002
  • Number of cases = 45
  • F = 7.299
  • df = 3
  • p = 0.000

7. Multivariate Analysis of Factors Affecting Consent Release

Table 4, above, shows the results of the regression analysis of the Crown decision to release the detained youth on consent controlling for other factors. After initial analysis that found there was no relationship, living arrangements and the type of current offence – that is, property and victimless offences versus other offence types – were omitted from the regression equation. We found, too, that the presence and number of past and current administration of justice charges were not related to consent release. Other measures of offence history were also not statistically significant. These findings are puzzling and somewhat at odds with other research. They may result from the small sample size or its atypical nature (e.g., data collected in the first few months after the proclamation of the new legislation).

The statistically significant factors related to being released on consent were not being a substance abuser, having no outstanding charges and having one to three (fewer) current charges. It may be that substance abuse is an indicator of factors not captured by this research. On the other hand, substance abuse is an “important factor” in determining the likelihood of reoffending according to bail decision-makers in adult courts (Morgan and Henderson, 1998).

8. Summary

No provincial policies specifically on bail decision-making were located. All Crown counsel participating in this research were aware of the bail provisions in the YCJA although there was variation (and confusion) in their interpretation.

In the bail decision sample as a whole, over 4 out of 10 cases were released on consent of the Crown. This is considerably lower than the estimates made by Crown counsel and defence interviewed during the study and lower than the only other Canadian research on youth court decisions (Varma, 2002). The lower-than-expected release rate could be related to the recency of the proclamation of the new legislation and to jurisdictional differences in the cases entering youth court.

The child welfare and mental health status of young persons is closely intertwined with their offence history and it is difficult to determine what factors are operating in the decision to release on consent. Nine out of ten cases had some type of current involvement with the youth justice system and two-thirds had earlier findings of guilt. One-half of the cases were accused of offences against the administration of justice.

The multivariate analysis of the factors affecting the Crown's decision to release suggest that having fewer current charges, having no outstanding charges and no evidence of abuse of alcohol or drugs were influential.

  • [27] Anova F value = 7.104 p=.011
  • [28] Section 35 can be used to invoke child welfare services, although the youth court cannot order that child welfare services be provided. It is not clear if the Crown recommended that this section be used.
  • [29] We rarely had the opportunity to determine what police recommended, if anything, with regard to the remand decision.

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