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)

2.8 Summary

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, with a range by court of 28 to 56 percent. [30] Another 13 percent were released by police but on conditions, most often not to communicate with victims or others and to avoid a specified area.

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 ground) and to protect the public because of the likelihood that the person will re-offend if released (secondary ground). The use of primary grounds was most pronounced. Only Vancouver cases had more mentions of secondary than primary grounds in Crown files. 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.

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, with a range of 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, similar in a sense to recognizance releases, 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.

Legal counsel, either duty or retained counsel, were almost always present at JIR hearings.

The length of detention stays is best described by the median number of days; the median is the midpoint of a distribution. In the sample overall, those who were not released until their case were held in custody for a median of three weeks. Among those who were not released, 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.

As mentioned above, 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 reported that 60 percent or more of cases are released on consent.

With regard to the charges involved in detention processing, the police most often hold young persons accused of serious drug offences, indictable or serious offences against the person, and offences against the administration of justice. 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 existing 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.

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. Winnipeg and Edmonton accused were charged most often, about 50 percent or more; the proportions were roughly half that size in the Halifax and the Toronto courts.

The curfew condition is most often violated. The several residence-related conditions were the second most frequent conditions resulting in charges.

[30] Excluding the anomalous downtown Vancouver youth court.

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