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)

2.3 Judicial Interim Release

2.3.1 The Timing of the First Bail Hearing

The Criminal Code requires that accused persons be brought before a justice within 24 hours of arrest or as soon as possible thereafter. This is achieved by the 24 hour availability of justices of the peace who hold bail hearings in detention centres and police stations as well as in the courts.

A question for this research was "how often is the 24-hour goal actually achieved?" [6] During the study period (1999/2000), at least one study location (Halifax-Dartmouth) did not have 24 hour, 7 day a week coverage by justices of the peace. [7]

Almost always, the court file is the sole source of information on the timing of the first hearing. Data on the date of entry to detention and the date of first hearing probably under-report first hearings held at detention centres and police stations because there are no court support staff present to record the information. Possibly, some if not all of those whose first appearances were apparently not made until three or more days after detention had bail hearings that were not recorded in the court file. [8]

In all courts combined, 91 percent of young persons had their first hearing on the same or the next calendar day of their entry into detention (i.e., within the 24 hour period specified in the Code). An additional 5 percent had their first hearing within two calendar days of arrest and detention. Halifax-Dartmouth cases were slightly less likely than those in other courts to have had their first hearing within one calendar day of detention. An examination of individual cases found that several cases that waited three to five days for their first hearing had been detained before long weekends and holidays such as Easter and Christmas.

Table 2.4

2.3.2 Release on Bail and the Form of Release

The majority of young persons detained at arrest by police were released by the court, usually on an undertaking to appear (Table 2.5). Youth were remanded into custody until the conclusion of their case most often in the downtown Toronto court (48 percent) [9] and least often in Surrey (26 percent), Vancouver (30 percent) and Halifax-Dartmouth (31 percent). Recognizances were most utilized in Toronto and Scarborough. This is because sureties from a parent or other person were often conditions of release. Interviews suggest that the routine use of sureties in the Toronto courts can disadvantage young persons who lack support systems. Some youth who were released on a recognizance according to the court file may not have been released because they failed to locate a relative or friend willing to sign the surety. A similar finding is reported by Kellough and Wortley (2002) who considered sureties a "supervisory" condition. Others consider the recognizance with sureties similar to release to a responsible person.

2.3.3 Release to Responsible Persons

Section 7.1 of the Young Offenders Act stated that youth may be released to a "responsible person" if both that person and the youth consent and, if it were not for the section, the youth would be detained. [10] In the study period (1999/2000) the two Toronto courts and the Winnipeg court did not use the responsible person provisions; elsewhere, from 6 to 13 percent of cases were released to a responsible person. Respondents mentioned that releases to responsible persons are similar to the use of sureties in recognizances. Recognizance releases involving a surety were the norm in Toronto and Scarborough, two of the three courts where section 7.1 was not used. In other words, sureties were apparently viewed as a substitute for "responsible persons". The use of sureties may not be an adequate alternative if the parents or other surety lack resources.

Table 2.5

Other reasons for the lack of use of these provisions were:

  • Someone has to make arrangements with the responsible person and if the young person has duty counsel representation and there is no court-based youth worker, this may not occur;
  • From the perspective of a Crown, "the Crown gets the brief in the morning and is unsure of who the responsible people are"; and,
  • Parents or guardians may be unwilling to sign the undertaking or there may be no available parents or guardians.

Young persons released under section 7.1 were more likely to have multiple stays in detention (59 percent) than were youth released on an undertaking to appear (40 percent) or a recognizance (31 percent). [11] This finding suggests that the youth subject to this provision may have been a higher risk group, at least in terms of their short-term non-compliance.

2.3.4 Adjournments of Bail Hearings

On average there were two adjournments before the bail issue was decided (i.e., three hearings) (see Table 2.6). Reasons for prolonged processing were provided in interviews.

  • Perhaps the most common reason is that parents or social workers are not available
  • There is no release plan. A defence counsel said: "if I have a youth who has no plan to present, especially those who are suffering from a mental illness, I’ll ask for an adjournment. A good example is a parent who is refusing to take the child and the [child protection agency] is reluctant to take the kid. I need an adjournment to see whether or not the kid can get into the early release project"
  • The young person wants to wait until his/her lawyer is available rather than rely on duty counsel. Adjournments because counsel are not available has become an issue in the Winnipeg youth court [12]
  • Because parents are angry at the youth, they refuse to sign the recognizance (in the Toronto courts)
  • The case is complex (e.g., a serious violent charge) and requires the calling of witnesses at the show cause hearing
  • Judge or justice of the peace shopping: [13] "you may want to adjourn for a day or two when you can get someone better"
  • Court workload: overloaded dockets sometimes mean that the court runs out of time to hear all bail matters
  • The Crown requires more information. With regard to this point, a defence counsel complained that "the Crown often asks for a three day remand, but it is an abuse - they never have any further evidence"

Table 2.6

2.3.5 The Need for a Release Plan

Young persons who are in the care of the child protection agency or who are otherwise without community supports can be especially challenging to defence because of the need to develop a workable release plan. A substantial number of these young persons have "exhausted" the available community placements because of running or other behaviour. According to a defence lawyer:

You have a kid who is a runner and has some minor charges. The [child protection agency] will say that they don’t have a placement because the kid is a runner. They convince the Crown to not allow the kid out. The Crown goes to duty counsel and says he will consent to release only upon finding a placement. But the agency is not rushing to find that placement. So then kids stay in detention too long.

2.3.6 Reverse Onus

Under most circumstances the onus is on the Crown to prove that the accused should be detained. However, reverse onus situations (i.e., where the defence counsel must prove that the accused should be released) arise in a substantial proportion of bail matters. Overall, one-third of cases involved reverse onus. The most frequent reasons for reverse onus, at least for young people, are: the young person is alleged to have committed an indictable offence while on bail for another indictable offence; or the youth is alleged to have failed to attend court or to attend for fingerprinting or has not complied with conditions of the release, either police or court-ordered. Interviews with Crown attorneys and defence counsel show that, even in reverse onus cases, the Crown may occasionally release the young person on consent. This can occur, for example, if the violation is minor and the youth is not perceived as a danger to the community.

There are noticeably fewer reverse onus cases reported in Halifax-Dartmouth and the two Vancouver-area youth courts: 20 percent or less compared to 40 percent or more in the other cities (Table 2.5). This may be accounted for by organizational or procedural factors. In Halifax-Dartmouth, the municipal police do not usually lay charges of failure to attend court or failure to attend for fingerprinting, which elsewhere are common reasons for reverse onus situations. In Vancouver and Surrey, bail reviews are used to deal with non-compliance on bail, not charges. Furthermore, in the downtown Vancouver court, breaches of probation are common (e.g., one-half of the Vancouver sample had a breach charge during the study period and almost one-half were on probation at the time of entry to the sample). In this city, breach of probation charges were the most frequent mechanisms used to attempt to control the behaviour of the young person, even though the youth was on bail as well as on probation. In the two Toronto courts and in Winnipeg, conversely, charges of non-compliance with undertakings and failure to attend court were the preferred approach to control. The effect of reverse onus situations on bail decision-making is further discussed in Section 4.

Defence counsel are usually present at bail hearings where bail is contested. Unfortunately, it was impossible to determine whether accused were released on consent when no legally trained advocate was present.

2.3.7 Days in Detention

Over all court locations, the average days detained prior to trial was 16 days; the median or midpoint was much lower at 3 days. [14] As with most other characteristics of bail, there were large variations by court. In Winnipeg, the average was 23 days in detention, compared to 9 days in Edmonton and only 7 days in Surrey. The medians or midpoints went from 1 day in Halifax, Vancouver and Surrey to a high of 9 days in the Scarborough court (See Table 2.7).

Days detained are, of course, greatly affected by whether the young person was released before sentence. Those who received bail spent four days in detention on average (a median of one day) and there was little variation by court location. Overall, young persons who were not released spent five weeks in detention on average, and the median was three weeks. Other than in Edmonton and Surrey, which had the shortest detention stays, the mean days in pre-trial custody for the not released group was about five weeks or more and the median days ranged from three to five weeks.

2.3.8 Bail Programs [15]

During the period covered by this study, bail programs were available in most study courts although Halifax-Dartmouth lacked a program and the bail alternative in Toronto only dealt with 16 and 17 year olds. In 17 percent of police-detained cases, there was some discussion in case files of referral to a bail program. [16] Most referrals, over 90 percent, actually entered the program. Information on completion rates was especially difficult to locate; of the known cases, 36 percent successfully completed the program.

Table 2.7

2.3.9 Appeals and De Novo Hearings

Although our analysis was hampered by missing data, we estimate that roughly 10 percent of detained cases requested a review or made an appeal. [17] Twenty percent of Toronto [18] and 15 percent of Edmonton detainees asked for a review, but elsewhere the numbers were negligible. Approximately two-thirds of reviews or appeals were successful.

2.3.10 Crown Decision-making

Little attention has been paid to the study of bail from a decision-making perspective, particularly the decisions made by the Crown attorney. British research on adult accused found that "the effective decisions are made out of court by professional participants, prior to the court hearing" (Hucklesby, 1997b). Barnford (1999) concluded that the judicial role is "largely supervisory and [the magistrate] only an active actor in a small proportion of the remand in custody decisions". The lack of contested show cause hearings was raised by Hucklesby. He estimated that only 9 percent of adult cases appearing before magistrates had a contested hearing (Hucklesby, 1997b), 85 percent were released on consent of the Crown, and the remainder were not contested by the accused. This proportion of unopposed bail is similar to figures in other British studies (cited in Barnford, 1999).

The study done in a large Toronto court by Varma (2002) utilized both qualitative and quantitative methods. As have the British researchers cited above, she emphasized the importance of the Crown in detention decision-making: 60 percent of her sample were released on consent. Her multivariate analysis showed that having a prior record and school status had independent effects on the likelihood of consent releases. Living with parents versus other arrangements was not significant.

A study of adult bail courts in Toronto found that almost two-thirds of the sample were released by the Crown attorney on consent (Kellough, 2003).

The present project was unable to collect reliable data on consent releases. Neither court nor Crown files contained this information in any consistent fashion. [19]

  • [6] Research done in three Ontario communities in the 1980s (Gandy 1992) reported that young offenders often did not have their bail hearing until six or more days after arrest.
  • [7] There are now justices of the peace available either in person or by speakerphone.
  • [8] A Crown mentioned that justices of the peace "are called in (to the police station) to decide on release or remand" but he was "not sure you would call it a bail hearing - more of a rubber stamp".
  • [9] In the downtown Toronto court, Varma (2002) found that almost 70 percent of her sample received bail compared to our finding of 52 percent, in the same court two to three years later. Whether the difference is due to sampling methods or to an actual decrease in releases on bail is not known.
  • [10] A similar provision is found in the Youth Criminal Justice Act.
  • [11] Data not shown in table form. See also section 6.2.
  • [12] Manitoba Aboriginal Justice Implementation Committee 2001.
  • [13] That is, requesting an adjournment in the expectation or hope that a more agreeable justice or judge will be sitting.
  • [14] Unlike the mean, the median is not affected by extreme values. The median or midpoint is in fact the statistic to use to determine the "typical" situation.
  • [15] In every court, it was difficult to locate information on alternatives to pre-trial detention. There is no assurance that the data on bail programs in this section are reliable.
  • [16] In Winnipeg, police officers referred cases to the Bail Management program. Because this situation had not been anticipated, no details of these referrals were obtained.
  • [17] Data not shown in table form.
  • [18] Interviews support the Toronto finding.
  • [19] This is an advantage of an observational method such as the one Varma undertook.
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