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)

2.5 Conditions of Release

This section presents the data on bail conditions imposed by the court. It is worth noting that 26 percent of the total sample received conditions from the court and an additional 13 percent received police-imposed conditions. [22] That is, almost four out of ten persons (26 plus 13 percent of the study sample) were legally obliged to abide by conditions such as area restrictions and curfews.

Almost all court-imposed undertakings and recognizances (97 percent) contained conditions in addition to the obligation to attend court and "to keep the peace and be of good behaviour". Interviews suggest that the information provided by police is critical to Crown recommendations regarding conditions. Release conditions may also be developed in consultation with defence. However, Crown and defence often lack the time to become acquainted with the accused’s situation other than through police reports. As will be discussed in Section 2.6, the police seem to have a degree of influence on the actual conditions imposed, at least in Halifax and Toronto.

Crowns said that there are both routine and fact-specific conditions. Examples of routine conditions are reside at a specific location, attend school, and have no contact with the victim and/or the co-accused. Other conditions depend on the charge or the behaviour of the youth, for example: no weapons, area restrictions and counselling (e.g., anger management, bullying, substance abuse, life skills). While one Crown said that she would request a curfew only if the incident occurred at night, some defence counsel were sceptical about the appropriateness of conditions such as curfews. "Many times kids are breached on a bail when there are conditions that should never have been on the bail order, conditions that had nothing to do with the crime." In Toronto, defence counsel were critical of both curfews and house arrest. "A paternalistic attitude causes curfew conditions, which are insane and house arrests, which cause more problems within the family." "Crowns began to ask for house arrest and then all of a sudden it becomes the norm in the courthouse culture". House arrest "allows for the young person to be breached at every turn".

There is some quantitative evidence on the relevance of bail conditions to the characteristics of the charge or the young person. [23] As might be expected from the Crown’s comments cited above about routine conditions, actual school enrolment and employment status had no relationship to the attend school/work condition. Youth who reportedly had substance abuse problems were twice as likely as those with no apparent problem to receive an abstention condition. Area restrictions were most likely to be placed on alleged drug offenders and least likely to be placed on those accused of indictable property and administration of justice charges. Youth accused of indictable person offences had twice the likelihood of receiving house arrest as did persons accused of other crimes.

Varma (2002) reported on the conditions that accompanied court release from detention in a large downtown Toronto youth court in 1997. She found that conditions to reside and to attend school were frequently imposed, and suggested that the imposition of these conditions is related to their potential for supervision, especially for younger persons. In this research there was no relationship between age and residence and curfew conditions.

2.5.1 Specific Conditions Imposed

As Table 2.10 shows, by far the most common condition is to stay at a specified residence (e.g., live with mother) or as directed by probation - the proportions were 69 to 94 percent depending on the location. A curfew was ordered in just over 50 percent of all cases, with a range of 43 to 71 percent. Almost 30 percent of downtown Toronto and Scarborough cases were ordered to remain at home at times when not attending school or working (house arrest). Over 90 percent of the youth dealt with by two Vancouver-area courts were required to report to probation on a regular basis; a routinized system of reporting to probation has long been available in British Columbia.

Well-established "courthouse culture" or existing practices probably account for many of the variations in the grounds by court location - depending on the court, the attend school/work condition went from 5 to 64 percent, and the no weapons condition was found from 1 to 48 percent of released cases. The magnitude of these differences suggests that they cannot be accounted for by differences in case characteristics. This finding is very similar to the finding regarding the stated grounds for detention discussed in 2.2 and shown in Table 2.3. That is, usual practices of the court contribute to the choice of specific grounds and conditions - rather more than does the behaviour of the young person.

Table 2.10

2.5.2 The Mean Number of Conditions

There were differences in the average number of conditions by court; cases from Halifax and Edmonton had significantly fewer conditions than in other courts (see last two rows of Table 2.10). The nature of the most serious current charge was related to the number of conditions. Youth accused of indictable offences against the person had an average of almost 5 conditions, whereas at the other extreme those charged with administration of justice offences had an average of 3.5 conditions or less. Having prior convictions was also significantly related to the number of conditions ordered by the youth court. [24]

2.5.3 A Comparison of the Bail Conditions Imposed on Young Persons and Adults

Bala (1994) suggested that youth are frequently released on "relatively stringent restrictions on their behaviour that would not be imposed on adults". There is evidence from Toronto that supports this speculation. A recent paper by Kellough and Wortley (2002) provides details of release conditions for Toronto adults dealt with in the mid-1990s. They summarized bail conditions into three categories - supervisory, offence-related and life style-related. Employing the same criteria, we compared the conditions imposed by two Toronto youth courts with those imposed by two Toronto adult courts. Youth received more conditions in the offence and life style-related categories than did adults: 58 versus 38 percent (offence-related); and 81 versus 39 percent (life style-related).

Furthermore, the number of release conditions differed for adults and youth. In the two Toronto youth courts, the mean number of bail conditions was 4.3 and the median was 4. In the two adult courts in the same city, the mean number was 3.2 per person and the median was 3.

Therefore, the suppositions of critics of youth detention practices were supported by these Toronto data on bail releases in youth and adult courts - that is, young persons released on bail are dealt with more severely than are adults.

  • [22] These figures are only for the matters that brought the youth into the study sample - i.e., the "instant" charges. As is discussed in Section 6, many accused experienced subsequent stays in detention.
  • [23] Data not shown in table form. See also 6.2.
  • [24] The data in the last two sentences are not shown in table form. The anova of the major offence category is: F=5.41, p<.001; for prior convictions (no or yes), it is F=15.73, p<.001.
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