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

3. Characteristics of Youth Detained by Police: What Factors Affect Police Decisions to Detain? (cont'd)

3. Characteristics of Youth Detained by Police: What Factors Affect Police Decisions to Detain? (cont'd)

3.2 Legal Characteristics of the Case

3.2.1 Arrest Warrants

Warrants for the arrest of young persons are typically issued when they have breached a court order by failing to attend court or violating terms of probation, not because of a new substantive offence. Data on warrants were overlooked during most of the data collection process. Later in the process it was realized that this variable is an important feature of detention processing. For example, breaches of probation orders in the Vancouver-area courts frequently seem to result in a bench warrant. [37]

In some locations, the system has a mechanism that gives the youth leeway when a court order is breached (usually the "attend court" condition). Although the terminology differs by court, the effect is the same: a warrant is issued but not "activated" immediately. This gives time for the defence counsel to locate the young person or for the young person to remember to contact the court about his/her missed court date.

A Halifax Crown attorney explained:

Occasionally if we have an excuse [from the youth], the judge will issue a warrant and hold it. They hold the warrant for two weeks and then send out the warrant. If no excuse, then a warrant is issued.

In Toronto a defence counsel said:

If you can impress upon the court that you know how to get hold of the youth, you ask for three to ten days for a return date. They are usually prepared to do that and issue a bench warrant with discretion. If the kid does not return then there is a straight bench warrant issued. Sometimes duty counsel will be contacted by the youth and the kid will appear the next day and the bench warrant is rescinded. … Bench warrants with discretion have been done [in Toronto] from a common law point for the last 20 years.

Procedures with the same effect existed in the Halifax-Dartmouth and Edmonton youth courts.

When a bench warrant was issued, almost all young persons were detained by police (Table 3.2). The small number that was not detained may have been the subjects of the flexibility described above.

3.2.2 Presence and Characteristics of Prior Record

Prior record is defined as prior findings of guilt (or convictions). The presence of a record was related to being detained everywhere but downtown Vancouver. There was a direct relationship between the number of past convictions and the likelihood of being held by the police for a judicial interim release. That is, the larger the number of convictions, the greater the likelihood that the youth was detained. The relationship was especially pronounced in Halifax and Toronto.

Because interviews and case law suggested that the history of the youth with regard to breaches of court orders affected detention processing, the total number of administration of justice offences was calculated. This analysis is confined to young persons with prior findings of guilt, so that the "none’s" in Table 3.2 are to be interpreted as cases that had previous convictions but none of this type.

Table 3.2

The total number of administration of justice offences was associated with being detained by police in Halifax-Dartmouth, Winnipeg and the total sample. [38]

Legal status of the youth was related to detention in several jurisdictions. The current status of the young person was prioritized as follows: no or only minimal current involvement (e.g., Alternative Measures), awaiting trial on outstanding charges, [39] on probation, and in custody, detention or unlawfully at large. Typically, persons with no current involvement were much less likely to be held than were others. In the total sample, those with no current involvement with the justice system were half as likely as others - those with outstanding charges or currently on probation - to be detained by police.

Some interview respondents believed that previous custodial sentences were influential in detaining young persons. This was the case in all locations other than the two British Columbia courts. The relationship was especially notable in Toronto, Winnipeg and downtown Vancouver where 70 percent of more of those with past custodial sentences were detained by police.

3.2.3 Current Charges

Under certain circumstances, the existence of outstanding charges can trigger a reverse onus situation. The presence and number of outstanding charges is strongly associated with police detention, except in the two Vancouver-area courts.

The number of charges laid against the youth at the time of the arrest on the "instant" offence was related to detention in all courts other than in downtown Vancouver and Surrey.

The most serious charge at the time of arrest on the "instant" offence(s) was associated with police detention. In Toronto and Winnipeg, persons suspected of indictable person charges were more likely to be held than indictable property offenders. Youth charged with indictable drug offences were detained in high proportions in Toronto, Edmonton, Vancouver and Surrey. Although not invariably, [40] a smaller percentage of those accused of hybrid person and property offences were held by police, when compared to their counterparts charged with indictable person and property offences. Variations by court in police detention were particularly noticeable for youth accused of hybrid offences against property: the proportion detained ranged from 13 percent in Halifax-Dartmouth to 47 percent in downtown Toronto. Excluding Vancouver and Surrey, probation breaches were less likely to be detained than were cases that allegedly failed to attend court or failed to abide by bail conditions. Overall, these other offences against the administration of justice resulted in pre-trial detention by police in the same percentages as indictable offences against the person, 73 and 76 percent, respectively (see the last column of Table 3.2).

The presence at arrest of charges of fail to comply with an undertaking or fail to attend court or for fingerprinting was also determined. This variable is different from the "most serious charge type" discussed in the last paragraph: it is calculated by looking at all charges at initial arrest to find out whether an FTC or FTA charge had been laid. Note that if the person had multiple charges, some substantive and others justice-related, [41] the most serious charge would be one of the substantive offences. Having such a charge substantially increased the likelihood of being detained by police. In Toronto, all youth with these charges were held for a bail hearing. [42]

  • [37] This information was obtained from interviews and file reviews done in 2003 for another project.
  • [38] Similar findings were apparent when the number of prior offences was collapsed into none versus some.
  • [39] An attempt was made to differentiate outstanding charges with and without conditions of release. Because of the need to go to other files to find out this information, the information was difficult to find and the data are unreliable.
  • [40] For example, in Toronto, the hybrid property and indictable property accused were detained in about the same proportions.
  • [41] A substantive charge is defined as all offences other than those involving the administration of justice
  • [42] A police officer, in the course of arguing in favour of continued detention, wrote that the youth "has been given an opportunity by the courts to take control of his life and has chosen to tell the courts to go to hell on more than one occasion (FAIL TO APPEAR CHARGES)". The emphasis is in the original.
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