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)

2.6 Police Recommendations

A recent Australian report (Barnford, 1999) has commented on the lack of information on the part played by police in the bail process. "Police decision-making is recognized as important at the judicial stage of the process, particularly in terms of recommendations to prosecutors, but that is not a well understood process." This section tries to illuminate the process using data from Halifax and Toronto, where more information, including police recommendations to the Crown regarding bail, was collected.

2.6.1 Police Recommendations on Bail

In almost 60 percent of police-detained cases, the investigating officer suggested that the Crown not release the young person on consent Table 2.11 shows what actually happened when officers did and did not recommend continued detention. When police did not recommend detention, two-thirds (68 percent) were released. When the investigating officer did recommend detention 54 percent were released. Therefore, police were slightly less successful in recommending pre-trial detention than they were when they were either silent on the subject or recommended release. This suggests that Crown attorneys are less likely to follow detention recommendations than they are release recommendations.

Actual detention outcome Police did not recommend pre-trial detention Police did recommend pre-trial detention
Column percentages
Detained by court 32.1 46.1
Released by court 67.9 53.9
Total percent 100.0% 100.0%
Total number 78 128

Notes: Chi-square = 3.96 df=1 p<.05

2.6.2 Police Release Condition Recommendations

Police made recommendations for specific conditions in 40 percent of cases in this sub-sample. The relationship between police recommendations and the actual conditions imposed on the young person is shown in Table 2.12. For the most part, the recommended conditions became part of the bail order. For almost every condition, the police recommendation to include the condition was followed in a large majority of cases. When the police did not recommend a specific condition, it was not often imposed; the exception was the residence condition, which as indicated previously is a routine condition. A condition to report was rarely recommended and rarely imposed. These data indicate that Crowns rely on police comments for this aspect of bail and that the court relies on the Crown.

The second column of Table 2.12 ("% of conditions recommended by police") shows the police preferences with regard to conditions. The conditions most popular with Halifax and Toronto police were area restrictions (51 percent) and curfews (54 percent). These conditions were actually imposed in the majority of cases, 79 percent and 62 percent, respectively.

We conclude that, while Crown attorneys (as well as the court) may not accept the police recommendation to detain an accused young person, they are more likely to agree to the specific conditions recommended by police. Because these data were limited to Halifax and the two Toronto courts, the generalizability of the findings is unknown.

Table 2.12

2.7 Bail Violation Charges

Bala (1994) likened charges of non-compliance with release conditions to "status offences"; that is, offences that are peculiar to the age group. For example, truancy was a status offence under the predecessor legislation to the Young Offenders Act.

2.7.1 Bail Violations at Entry into the Study Sample

Excluding Vancouver and Surrey, [25] 13 percent of young persons had a failure to attend court or a failure to comply with an undertaking among their instant charges. [26] The largest proportion, 21 percent, was found in Winnipeg. However, these proportions are misleading. Not all youth were "eligible" for a failure to comply with a bail condition charge (FTC) or a charge of failure to attend court (FTA) - only those who had outstanding charges were "eligible". One-third of the sample fell into the eligible category. When the sample is restricted to those who had an FTC/FTA charge at arrest and were known to have outstanding charges, 40 percent had only the one charge ( i.e., the FTC or FTA offence), and 60 percent had the FTC/FTA and other charges. In other words, of the group with an FTC/FTA charge at arrest, about 40 percent of youth were charged only with FTC/FTA and nothing else, while the majority were accused of other offences as well. [27]

2.7.2 Bail Violations after Release by the Court

Almost 60 percent of accused youth who had judicial interim release hearings were released on bail, almost always with conditions. Among those released on bail, 40 percent were charged with fail to comply with a release condition. [28] The proportion of young persons charged varied by court location: [29]

  • 28 percent in Halifax-Dartmouth;
  • 27 percent in Toronto and 18 percent in Scarborough;
  • 57 percent in Winnipeg; and,
  • 49 percent in Edmonton

These differences by location are influenced by at least three factors - police (and probation in some communities) practices with regard to enforcing bail violations, the length of the court process (the longer the process, the greater the opportunity for violations to occur), and the number and type of conditions. For example, the conditions may not be placed on the national or local police information system in a timely manner. Both Winnipeg and Edmonton have police programs to verify compliance with curfews and have higher percentages of bail violators.

Therefore, substantial percentages of young persons released with conditions were charged with violating their conditions.

2.7.3 The Types of Conditions Violated

Curfew violations predominated, at 34 percent of the known bail charges (Table 2.13). About 18 percent of violations involved the various residence conditions. The non-substantive violation of "keep the peace and be of good behaviour" - laid in conjunction with a new substantive charge such as break and enter - was found in 9 percent of charges. None of the remainder of the conditions contributed more than five percent to the total number of violations.

Table 2.13

When we change the unit of analysis to the case, similar findings are evident. Almost one-third (32 percent) of youth who were released by the court with a curfew condition were charged with breaching that curfew. Thirteen percent of releasees with a reside condition were charged with violating that condition. Failure to attend court is also a "bail" violation since all accused are required to attend their court hearings whatever their form of police or court release. Roughly 7 percent of the sample who were released by the court were charged with FTA. Slightly more young persons, 13 percent, who were not detained by police failed to attend one or more court hearings and were charged as a result. Overall, about 10 percent of young persons were charged with failure to attend court.

  • [25] Vancouver and Surrey were excluded because bail violations are normally dealt with as bail reviews.
  • [26] "Instant" offences are those that brought the case into the study sample.
  • [27] These findings should be viewed cautiously because of the coding and sampling conventions of this research as well as variations in court operations. In some courts, the FTC/FTA charges were dealt with independently of the charges to which they relate; in others, all charges merged and were disposed at the same hearing.
  • [28] Or with failure to attend court. Practices differed with regard to charging failure to attend court; some jurisdictions laid section 145(3) whereas others laid section 145(2). Section 145(3) is also used for failure to comply charges.
  • [29] Vancouver and Surrey are excluded because FTC charges are rarely laid.
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