Pre-Trial Detention Under the Young Offenders Act: A Study of Urban Courts
- 7.1 Jurisdictional Variations
- 7.2 Determinants of Pre-trial Detention Decisions
- 7.3 Socio-legal and Non-legal Factors Affecting Pre-trial Detention
This report has presented data on the pre-trial release decisions made by youth courts in five provinces before the inception of the Youth Criminal Justice Act. Data on a random sample of cases that had their first court hearing in fiscal year 1999-2000 in Halifax-Dartmouth, two courts in Toronto, Winnipeg, Edmonton, Vancouver and Surrey were analyzed.
One theme immediately stands out - the vast differences among the courts in almost all aspects of bail decision-making. The second theme, related to the first, is that in many cases we cannot explain jurisdictional variations by the differences in the social and legal characteristics of the young persons. The local legal culture which includes the "usual practices" of police, Crown attorneys, and members of the bench contributes to the differences by court location.
The most obvious examples of the usual practices are the differences by court in the percentages detained by police and detained by the youth court after a bail hearing:
- Depending upon the youth court, from 28 to 79 percent of young persons were detained at their apprehension by police. Downtown Vancouver was the anomalous court - there, 79 percent were detained - while the next greatest use of police detention, at 56 percent, was in downtown Toronto.
- The range for detention by the youth court was not quite as large: from 26 percent to 48 percent of youth were held until their charges were disposed of.
Other examples of practices that are not explainable by the available data include:
- The mean number of conditions imposed on youth released on bail goes from 2.9 in the Edmonton youth court, to 4.4 in Scarborough and downtown Vancouver.
- The variations by court in the release conditions themselves are considerable. For example, area restrictions were imposed on 11 to 54 percent of released youth, and no firearms or weapons imposed on 1 to 48 percent of cases.
Just as the percentages of the various decisions differ from city to city, so do the factors related to those decisions. The implication for this and other research in the youth justice area is that court location should be taken into consideration as an important factor.
There was a strong association between the type of police release and the most serious offence of the young person. The more serious the offence, the greater the likelihood that the young person was given a police undertaking as opposed to other less serious modes of release such as an appearance notice or summons.
Police undertakings can include conditions. There were few relationships between social and legal factors and specific conditions:
- non-communication with the complainant or other person was affected by the presence of an offence against the person; and,
- race - being black or Aboriginal - increased the likelihood of the undertaking including notify of change in address, employment and area restriction conditions.
We suggest that "usual practices" may be paramount in the decisions to impose specific conditions in police undertakings.
In this study, 45 percent of youth were detained for a bail hearing. The multivariate analysis revealed that the factors that had the strongest relationship to police detention were the seriousness or type of the current charges, the number of current charges and various measures of prior offence history. Of the social and socio-legal characteristics of the case, only unconventional living arrangements increased the probability of being detained by police. The race of the accused was not associated with police detention in the sample overall, but in Toronto black youth were significantly more likely to be held by police for a bail hearing even when other factors were controlled.
It should be emphasized that, while the youth court (either a justice of the peace or a judge) is formally responsible for deciding on bail, in actual fact it is the Crown attorney who makes most of the decisions. Other research has found that the majority of cases are released from detention "on consent" of the Crown. The information sources for the Crown are the police report and, less often, defence counsel and probation or program staff.
Unlike police detention, there was no relationship between the form of court release and the seriousness of the current charges. Although the relationships were not strong, the types of conditions were influenced by age, race, prior record and the type of current offence.
As in police detention, young persons in living arrangements that appeared to offer less potential for supervision were more likely to be held, when all other factors were controlled. Seventeen year olds were held significantly more often than those 16 years of age and younger. Significant legal factors included the seriousness of the current charge, the presence of a current FTA/FTC charge and the existence of outstanding charges. However, the likelihood of a detention order most often depended on the prior record of the young person - the lengthier and more serious the offence history, the more often the accused is held until his or her case disposition is reached. Kellough (2003) argued that the emphasis on past behaviour
"served to prevent [accused] from presenting contradictory information that would place them in a more positive light".
In conclusion, the youth courts place greater weight on prior record than on the characteristics of the current offence in making their bail decisions. This is probably related to the prediction aspect of the decision - past behaviour is usually regarded as the best predictor of future behaviour.
Release and detention decisions are made on the grounds first developed for adult accused and, after the proclamation of the Young Offenders Act, adapted to young persons.  The case law that has evolved since the early seventies includes both social and legal factors in the determination of grounds, especially primary grounds. The extent to which the accused has ties to the community is an indicator of likelihood of attending court and is measured by employment status, family ties, homelessness versus owning or renting. The juvenile correlates of these factors are school or activity status and family status (e.g., living with parents versus other circumstances). As Kellough and Wortley (2002, footnote 6) commented:
The argument could be made that variables such as employment status, home address and citizenship are actually personal identity characteristics and should not be considered indicators of flight risk. However the Canadian courts [reference removed] have often accepted that these are indicators of flight risk…
The report of the implementation commission of the Aboriginal Justice Inquiry in Manitoba emphasized that the use of personal factors especially disadvantages Aboriginal youth. When granting bail,
criminal justice officials will frequently consider factors such as whether the young person has a job or is involved in an education program. The court considers whether the young person's parents are employed. It considers the perceived "stability" and resources of the family and the community, the presence of alcohol or drug problems, whether the youth or the youth's parents have a fixed address and, if so, how long they have lived at that address. Decisions made on the basis of these types of factors discriminate against Aboriginal people, because those factors are linked directly to the marginal social, cultural and economic place of Aboriginal people in society. 
Thus, what seem to be "personal identity characteristics" are converted to legal considerations in the case law. In addition, there is no evidence that grounds for detention in the case law predict court attendance and re-offending on bail.
The use of detention for child welfare reasons is a persistent issue. Unfortunately, the criteria for detention are the same criteria that one would use to identify detention decisions made for child welfare reasons, e.g., homelessness or unconventional living situations. Consequently, to differentiate between decisions made on the basis of the "socio-legal" factors and child welfare concerns becomes impossible.  In this report, the finding that living with persons other than family members independently predicts detention by police and by the court does not necessarily mean that the decision-makers were influenced by child welfare considerations.
Of demographic factors, age is a special case. It is unlikely that decisions influenced by age would be regarded as discriminatory because older youth are perceived to be more responsible and accountable for their actions. The multivariate analysis found that police detained older youth more often in Halifax and younger persons more often in downtown Vancouver.
Decisions affected by sex and racial background are more clearly discriminatory. Multivariate analyses found that the gender of the accused person did not affect either police or court detention decisions when other factors were controlled. The decline in gender as a factor in police decision-making has been reported by others (e.g., Carrington, 1998).
Race, which was operationalized as blacks and Aboriginal Canadians versus all others, affected several decisions. In Toronto, being black made it more likely that
- police would hold the young person for a judicial interim release hearing;
- the young person was released by the court on a recognizance requiring sureties rather than on less onerous modes of release; and,
- the young person would have more court-imposed bail conditions than did others.
In the sample as a whole, being black or Aboriginal affected the imposition of specific conditions on both police and court undertakings even when other factors were controlled.
In summary, race affected some decisions by police and the courts in a manner that most observers would view as discriminatory.
-  The Bail Reform Act (1971) which introduced the legislative framework for bail decisions into the Criminal Code, was not widely used under the Juvenile Delinquents Act, although some juvenile courts used its provisions (e.g., downtown Toronto, one of the study sites) before the YOA came into effect. Work by Carrington et al. (1988) found that even in courts that did not explicitly use the Criminal Code, many decisions seemed in keeping with its bail provisions
-  Cited in the Manitoba Aboriginal Justice Implementation Commission, 2001.
-  In the study by Moyer and Basic on Crown decision-making (2004), interviews with Crown counsel found that some decisions were clearly influenced by child protection concerns (e.g., a 15 year old prostitute with drug problem).
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