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

4. Judicial Interim Release: What Factors Affect Court Decision-Making? (cont'd)

4. Judicial Interim Release: What Factors Affect Court Decision-Making? (cont'd)

4.2 Legal Characteristics of the Case

4.2.1 Bail-related Factors

In all courts, the cases where there was evidence of reverse onus were more likely to be detained. Although Crowns said that they would on occasion release reverse onus cases on consent, such cases were roughly twice as likely to be detained by the court when compared to others. Mention of either primary or secondary grounds was related to detention by the court. In most locations, police and Crown files mentioned primary and secondary grounds in relatively few cases. It is probable that the grounds are mentioned in files only when the police or Crown attorneys are against release. [45]

4.2.2 Presence and Characteristics of Prior Record

Everywhere, youth with prior findings of guilt were more likely to be held by the court. Moreover, the larger the number of findings, the greater the likelihood of court detention.

When all prior offences against the administration of justice are considered, the patterns were strong and consistent across court locations: the presence and number of prior convictions increased the likelihood of detention.

Youth who had no current involvement with the youth justice system or only minor involvement (Alternative Measures) were much less likely than others to be held. Persons with outstanding charges but no convictions were detained in about equal proportions as those who were on probation.

With regard to the most serious prior sentence, compared to those with prior convictions but no custody, a larger proportion of persons who had been sentenced to custody in the past were detained.

Table 4.2

4.2.3 Current Charges

As already discussed, outstanding charges can be grounds for reverse onus proceedings, so that it is not surprising that youth with charges in process when they entered the sample were more likely to be held, especially if they had three or more outstanding charges. [46]

The number of current charges was not related to court detention decisions except in the total sample.

The most serious charge at arrest shows no clear pattern across court locations. Looking at the entire sample, hybrid person offences and hybrid property offences were least likely to result in pre-trial detention, 26 percent and 31 percent respectively. Detention rates were 40 percent or more for indictable offences against the person, other (mostly victimless) charges, probation breaches, and other offences against the administration of justice.

A current charge of fail to attend court or non-compliance with bail conditions opens the way to the Crown treating the matter as reverse onus. All youth courts showed the same pattern: breaching this type of court order meant that the probability of detention increased.

  • [45] This is not true in Toronto where the only data source of grounds was police reports to the Crown on youth that police had held for a bail hearing. Police discussion of the grounds on which the persons were held are routine, or almost so, for all police-detained youth.
  • [46] Winnipeg stood out here: persons with outstanding matters were not much more prone to being detained than were those with no such charges.
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