19 February

Bail Under the YCJA

By: Samantha Saunders

The Youth Criminal Justice Act is the piece of legislation that directs how individuals under the age of 18 are dealt with throughout the criminal justice process. The YCJA came into effect on April 1, 2003, and one of its main goals was to reduce the over-incarceration of young people that had become the norm under the Young Offender’s Act. As such, the YCJA very clearly outlines the process the courts must follow in determining whether a young person should be denied bail. Although the Criminal Code still applies to bail for young persons except to the extent that it is inconsistent with or excluded by the YCJA, in practice, the Act contains a complete and comprehensive bail scheme that fully encompasses the bail provisions in the Code. Counsel appearing for a young person’s bail hearing should familiarize themselves with the relevant sections of the YCJA; in particular, section 29(2).

Section 29(2) of the YCJA outlines the criteria for detention of a young person. The section reads as follows:

29(2) A youth justice court judge or a justice may order that a young person be detained in custody only if

(a) the young person has been charged with

(i) a serious offence, or

(ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt;

(b) the judge or justice is satisfied, on a balance of probabilities,

(i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,

(ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or

(iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in section 3 and to all the circumstances, including

(A) the apparent strength of the prosecution’s case,

(B) the gravity of the offence,

(C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and

(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),

(i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,

(ii) offer adequate protection to the public from the risk that the young person might otherwise present, or

(iii) maintain confidence in the administration of justice.

Subsection 29(2)(a) limits the situations in which a young person can lawfully be detained. The young person must either be charged with a serious offence (defined in section 2 of the YCJA as an indictable offence for which the maximum punishment is imprisonment for 5 years or more), or, if the offence charged is not a serious offence, the individual must have a history that shows a pattern of outstanding charges or findings of guilt. The Supreme Court has interpreted this latter requirement to mean that the Crown must lead evidence of at least three prior findings of guilt or outstanding charges.[i] If neither of these factors apply to the young person before the court, that person cannot be detained and that is the end of the matter. If one of these criterions does apply, the court must then look at the factors in 29(2)(b).

Section 29(2)(b) of the YCJA mirrors the primary, secondary and tertiary grounds found in the Criminal Code, with some key differences to reflect the enhanced protection that the law affords to youths. While the primary ground under the YCJA contains essentially the same criteria as the primary ground under the Criminal Code, the secondary ground concerns differ. Under the YCJA, it is not sufficient for the crown to prove that there is a substantial likelihood that if released, the young person will commit a further offence. The section specifies that it must be a “serious offence”, as defined in the YCJA. The tertiary ground under the YCJA also differs from its counterpart in the Criminal Code. The tertiary ground only comes into play when the Crown has not met its onus under the previous two grounds, and it only applies when the offence charged is a serious offence as defined by the Act, and only in “exceptional circumstances”. The YCJA doesn’t provide a definition for exceptional circumstances, but the Ontario Court of Appeal in R v REW defined “exceptional cases” in the context of sentencing under the YCJA as those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values.[ii] Given the very high threshold the YCJA sets out for the tertiary ground, the Crown should only be able to meet its onus for this ground in the rarest of cases. It is not meant to be a default “catch all” ground.

Even if the Crown establishes that there are concerns under one of the grounds in section 29(2)(b), the court must still consider whether there is any plan of release that can be crafted to adequately address these concerns. Ultimately, if a young person is to be detained, the court must have found on a balance of probabilities that no combination of conditions would be capable of addressing the specific concerns of the court in that case. Finally, even if detention would otherwise be required, section 31 of the YCJA requires that the presiding justice inquire about the availability of a “responsible person” as an alternative to detaining the youth. This person undertakes to the court that they will ensure the young person attends their court appearance and adheres to their release conditions. This role differs from that of a surety; if someone who has been named as a responsible person by the court willfully fails to meet their obligations, they can be charged with an offence under section 139(1) of the YCJA and could face a maximum sentence of two years imprisonment.

These sections of the YCJA, when read together, create a bail scheme that heavily favours release for young persons. Detention should be the last resort once the Crown has met its onus and where there is no plan of release that can be crafted and no person to whom the accused can be released that would satisfy the court’s concerns. These circumstances should be rare. In order for the YCJA to achieve its intended purpose, counsel should be attuned to the differences in addressing bail for a youth as opposed to an adult, and should ensure that the accused is being given the full benefit of the enhanced protections under the Act. Crown attorneys should also bear the principles of the YCJA in mind when taking a position on bail, and when seeking to include certain conditions in a release order. Too often in youth matters, child welfare considerations are factored into bail conditions. The case law is clear that these considerations have no place in bail court, as the result could be an overly onerous release with conditions that are completely unrelated to the grounds in section 29(2)(b). Ultimately it is up to the legal profession to ensure that the YCJA remains a meaningful piece of legislation capable of fulfilling its purpose, especially at the bail stage.

End Notes

[i] R v S.A.C. 2008 SCC 47 at para 22.

[ii] [2006] O.J. No. 265 at para 43.


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