Bail for Youth

The Youth Criminal Justice Act (YCJA) recognizes that youth have the right to be presumed innocent until proven guilty and to not be denied reasonable bail without “just cause.” These rights are set out in the Canadian Charter of Rights and Freedoms. The YCJA has several rules for the detention and release of youth aged 12 to 17 who come in contact with the criminal justice system.

What is bail?

Bail is when a person charged with a criminal offence is released from being detained in custody while they wait for their trial or for their case to be resolved. A person can be released with or without conditions that they must follow during their release. Not everyone who is charged with a criminal offence receives bail.

How does bail function for youth?

Police may release youth who are charged with a criminal offence while they wait for their trial or their case to be resolved. If the youth is not released by police, a bail hearing is held. At a bail hearing, the court decides whether to release the youth or keep them detained in custody. Should the court order the youth’s release, it can impose conditions they must follow that are tailored to their specific situation or case.

Most youth who come in contact with the criminal justice system for minor offending behaviour are not part of the bail process. Often, youth are dealt with through extrajudicial measures, which are outside of formal court processes. This includes warnings, cautions, or referrals to community programs or agencies. Depending on the circumstances, police or a Crown prosecutor can apply these measures before or after the youth is charged with an offence.

Detention and release

The Criminal Code bail provisions generally apply to decisions about whether a youth should be detained or released, except when those provisions are inconsistent with or excluded by the YCJA. Learn about the bail process under the Criminal Code here: Backgrounder: The Bail Process.

The YCJA has several rules about the detention and release of youth. These rules recognize the special circumstances and inherent vulnerability of youth. For example, police and courts are not allowed to detain or impose release conditions on a youth as a replacement for child protection, mental health or other social measures. This ensures that decisions related to the detention or release of youth are made for criminal justice purposes only.

A youth who has been arrested may also be placed in the care of “a responsible person” instead of being detained in custody. A responsible person is a person who is willing to take care of and exercise control over the youth, such as a family member or another adult known to the youth. In situations where the youth would otherwise be detained, courts are required to ask if a responsible person is available and if the youth is willing to be placed in their care.

Grounds for detention

Under the YCJA, the Crown prosecutor has the responsibility or “onus” to demonstrate to the court why a youth should be detained. The Act sets out the criteria and specific grounds for when a Crown prosecutor can ask the court to keep a youth in detention. A court order to detain a youth may only be justified in the following situations:

• the youth has been charged with either a “serious offence” or has a history of outstanding criminal charges or findings of guilt, and
• the court is satisfied that:
  1. there is a substantial likelihood that the youth will not appear in court when required (referred to as the “primary ground”), or
  2. detention is necessary for the protection or safety of the public, which includes a substantial likelihood that the youth will commit a serious offence if released from custody (referred to as the “secondary ground”), or
  3. in the case of a serious offence, there are exceptional circumstances that make the detention necessary to maintain confidence in the administration of justice (referred to as the “tertiary ground”), and
• the court is satisfied that releasing the youth with conditions would not be sufficient to address concerns about their appearance in court, public safety or maintaining confidence in the administration of justice.

Placement in temporary detention

The general rule is that youth who are placed in temporary detention must be held separately from adults. There are exceptions to this rule, such as when a court may decide that the separation from adults is not possible based on the best interests of the youth because:

• there are safety concerns with placing the youth in a youth detention facility
• there is no youth detention facility available within a reasonable distance

What are bail conditions?

When a youth is released on bail, the court can impose conditions they must follow. Conditions are meant to address risks posed by a youth, including to ensure they do not commit new criminal offences while they wait for their trial.

The YCJA allows a court to impose Criminal Code bail conditions on a youth only if they are necessary to ensure the youth attends court or to protect public safety. When imposing these conditions, the court must consider:

• the circumstances of the youth’s offending behaviour
• if the conditions are reasonable
• whether the youth can comply with the conditions

If a youth breaches any of their bail conditions, they may be detained and have to return to court. They may also be arrested and face new criminal charges for the breach.