Crown Decision-Making Under the Youth Criminal Justice Act

Bail Decision-making by Crown Counsel

[T]he key decision-maker in youth bail court is the Crown Attorney. If the Crown Attorney did not contest release, every youth was released by the judge or the justice of the peace (Varma, 2002: 150).

1. The YCJA

One of principles in the YCJA is that detention is not to be used “as a substitute for appropriate child protection, mental health or other social measures” (s. 29(1)). In addition, when considering detention for public safety reasons –the probability of committing another offence – the court must presume that detention is not necessary unless the young person could receive a custody sentence on conviction. The YCJA permits the use of custody for violent offences, youth who have failed to comply with past community-based sentences, or youth with a previous pattern of indictable offences for which an adult would receive more than two years jail (s. 39(1)).

In s. 31, the Act specifies that the court must inquire about the availability of a responsible person and the youth's willingness to be placed with that person. The detained youth can be released to a responsible person if she or he would be detained in the absence of that person and if both the youth and the person agree.

2. Provincial Policies

No written provincial policies on youth bail and detention relevant to the new Act were obtained for Saskatchewan. However, Judicial Interim Release Programs were available in Saskatoon and Regina. Most referrals to the programs were made by the Crown prosecutor, usually after the first court appearance of the young person. The JIR programs are responsible for supervision and monitoring of the young persons while on bail; residential placements are not a component of the programs. The Crown prosecutor places a great deal of weight on the suitability assessments prepared by JIR staff.

In British Columbia, policies for pre-bail enquiries have been developed.[23] The enquiry is an investigation and report to the court on the factors, including alternatives to detention, relevant to the detention or release of a young person. It is conducted by probation officers. Information in the report includes previous responses to bail supervision and to community supervised sentences, the suitability of the young person's living situation, previous AWOLs, and the availability and suitability of alternatives to detention. Lack of a suitable home is insufficient grounds for detention so that, if the youth is in this situation, the probation officer is directed to refer the case to a social worker, financial assistance worker or a community-based residence such as a youth hostel. The probation officer's report is normally delivered orally to the court but must be later placed in writing. One case was scheduled for a bail enquiry during study observation.

3. Rates of Release on Consent

There were 33 bail cases in Saskatchewan and 16 in British Columbia observed during field work. In one case, defence consented to continued detention.[24] In just over four out of ten cases (44 percent), Crown counsel consented to release, and there was no difference by province.[25] A recent study in a large Toronto youth court found that about 60 percent of young persons detained by police are released on consent by the Crown prosecutor (Varma, 2002).

In Saskatchewan and B.C., Crowns and defence counsel had various estimates of the proportions released by the Crown prosecutor. Most respondents said that the majority of cases, from two-thirds to more than three-quarters, are released upon Crown consent.[26] The discrepancy between the study data (44 percent) and respondent estimates (67 to 75 percent) could be because the estimates were based on pre- YCJ A processing, which was only a few months before our interviews. Alternatively, the discrepancy may be due to the difficulty in estimating proportions.

In most courts, full scale show cause hearings were said to be relatively infrequent. A Crown prosecutor from B.C. noted that defence counsel were as aware as the Crown was of the background of the young person, the community resources available, and the likely outcome of the bail hearing: “so why waste time?”

4. Information Sources Used by Crown Counsel

Of key actors, discussions with defence counsel occurred most often, with B.C. bail cases almost twice as likely to involve defence-Crown communication as Saskatchewan cases (about 80 versus 45 percent, p=.02). This finding can be compared to that for exchanges between defence and Crown at sentencing, where the reverse was true: Saskatchewan cases were more likely to involve interaction than were those in British Columbia. This difference in Crown-defence interaction at bail matters could be related to the opportunities for such interaction. Moreover, there was a tendency for defence-Crown interaction to occur more often in cases when the youth had outstanding charges and other negative attributes and hence was not released by the Crown. This indicates that the interaction is most likely to take place in more serious bail matters.

It was evident that Crown prosecutors and defence counsel in both provinces were often familiar with the detained young persons.

Other sources of verbal information were probation officers (23 percent), parents (24 percent), Judicial Interim Release Program staff (19 percent) and social services personnel (11 percent).

Over four out of ten bail cases involved written reports such as JIR reports, letters from placements or earlier PSRs and medical-psychological reports.

When verbal interactions and the availability of written material are combined, six out of ten cases involved two or more sources of information, i.e., one source in addition to the police report.

  • [23] Ministry of Children and Family Development, Youth Justice Policy and Program Support, Community Youth Justice Programs, Community Pre-trial Services and Remand Custody, Pre-bail Enquiries, 2003.
  • [24] Defence consented to the remand of a 15 year old Aboriginal girl, who was charged with probation breaches (area restriction and contacting a no-contact person). She had about a dozen prior convictions and had received custody in the past. She had substance abuse problems. Ministry of Children and Family Development staff were looking for a residential treatment placement. It was not clear from observation if defence consent was given in order to finalize a release plan.
  • [25] During data collection, a Crown received a telephone call from “head office” suggesting that too many youth were being detained under the new legislation. The Crown angrily commented that if the law indicates that the youth should be remanded, they have to be remanded.
  • [26] For example, a Saskatchewan defence said, “the Crown is very good at releasing kids without a bail hearing. You really have to have committed a number of offences before they start saying ‘enough is enough'”.

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