Bail for Young Accused
Sections 28 to 31 of the Youth Criminal Justice Act address the law of bail relating to young offenders.
Except where stated in the YCJA, the rules of bail under Part XVI (Compelling Appearance of Accused Before a Justice and Interim Release) of the Criminal Code will equally apply to young offenders.
Detention is not permitted on the basis of that it is a substitute for appropriate child protection, mental health treatment, or other social services. (s. 29(1))
Review and Appeal
Under s. 33 of the YCJA an order for release can be reviewed.
s. 28 YCJA states ("Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.")
A detained young person must appear before a judge or justice of the peace. (s.32(1)) Once the accused is before the judge or justice, the judge or justice must
- have the information or indictment read to the accused
- inform him of his right to counsel;
- notify accused of possibility of an adult sentence.
See also R v M.T.S., 2006 NSPC 8 (CanLII)
Justices of the Peace
Under s. 20(1) and 33(1) of the YCJA a Justice of the Peace has authority to determine interim release:
Certain proceedings may be taken before justices
20 (1) Any proceeding that may be carried out before a justice under the Criminal Code, other than a plea, a trial or an adjudication, may be carried out before a justice in respect of an offence alleged to have been committed by a young person, and any process that may be issued by a justice under the Criminal Code may be issued by a justice in respect of an offence alleged to have been committed by a young person.
release from or detention in custody
33 (1) If an order is made under section 515 (judicial interim release) of the Criminal Code in respect of a young person by a justice who is not a youth justice court judge, an application may, at any time after the order is made, be made to a youth justice court for the release from or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an original application.
Grounds for Detention
Section 28 of the YCJA incorporates the bail provisions from Part XVI of the Criminal Code, including s. 515:
Application of Part XVI of Criminal Code
28 Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.
However, there are numerous modifications within the YCJA.
The onus in bail matters is upon the Crown to establish the basis for detention. (s. 29(3))
Section 29(2) sets out the three preconditions that must be satisfied before a youth court justice may order a young person detained.
Justification for detention in custody
(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.
2012, c. 1, s. 169
The three grounds are similar to those found in s. 515:
- basis that the offence is "serious" or the history of charges or convictions show a "history that indicates a pattern". (s. 29(2)(a))
- there is sufficient belief that he would not attend court, he would commit a "serious offence" or it is simply necessary to "maintain confidence in the administration of justice", and
- no conditions would sufficiently reduce those beliefs.
The term "serious offence" is defined in s. 2 YCJA as "an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more."
see list of differences in R v FA, 2016 ABPC 132 (CanLII) at para 6
Placement of young person in care of responsible person
31. (1) A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody if a youth justice court or a justice is satisfied that
- (a) the young person would, but for this subsection, be detained in custody under section 515 (judicial interim release) of the Criminal Code;
- (b) the person is willing and able to take care of and exercise control over the young person; and
- (c) the young person is willing to be placed in the care of that person.
Inquiry as to availability of a responsible person
(2) If a young person would, in the absence of a responsible person, be detained in custody, the youth justice court or the justice shall inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person’s care.
Condition of placement
(3) A young person shall not be placed in the care of a person under subsection (1) unless
- (a) that person undertakes in writing to take care of and to be responsible for the attendance of the young person in court when required and to comply with any other conditions that the youth justice court judge or the justice may specify; and
- (b) the young person undertakes in writing to comply with the arrangement and to comply with any other conditions that the youth justice court judge or the justice may specify.
In a youth bail hearing, section 31 requires that the judge consider the possibility of placement of the young person in the care of her for her responsible person. Failure to do so will amount to an error of law.
- R v R.D., 2010 ONCA 899 (CanLII)
A breach of a release to responsible person is prosecutable under s. 139 of the YCJA:
Offence and punishment
139 (1) Every person who wilfully fails to comply with section 30 (designated place of temporary detention), or with an undertaking entered into under subsection 31(3) (condition of placement),
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
- (b) is guilty of an offence punishable on summary conviction.
Offence and punishment
(2) Every person who wilfully fails to comply with section 7 (designated place of temporary detention) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or with an undertaking entered into under subsection 7.1(2) (condition of placement) of that Act is guilty of an offence punishable on summary conviction.
(3) Any person who uses or authorizes the use of an application form in contravention of subsection 82(3) (application for employment) is guilty of an offence punishable on summary conviction.
Section 469 Offences
Section 33(8) addresses release for young persons charged with an offence under s. 469:
Interim release by youth justice court judge only
(8) If a young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code [the section dealing with release of accused charged with a s. 469 offence], a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section.
- see s. 33(8) and 522 of the Code
R v FA, 2016 ABPC 132 (CanLII) at para 4
Forfeiture of Recognizances
Applications for forfeiture of recognizances
134 Applications for the forfeiture of recognizances of young persons shall be made to the youth justice court.
Proceedings in case of default
135 (1) When a recognizance binding a young person has been endorsed with a certificate under subsection 770(1) of the Criminal Code, a youth justice court judge shall
- (a) on the request of the Attorney General, fix a time and place for the hearing of an application for the forfeiture of the recognizance; and
- (b) after fixing a time and place for the hearing, cause to be sent by confirmed delivery service, not less than ten days before the time so fixed, to each principal and surety named in the recognizance, directed to his or her latest known address, a notice requiring him or her to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited.
Order for forfeiture of recognizance
(2) When subsection (1) is complied with, the youth justice court judge may, after giving the parties an opportunity to be heard, in his or her discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he or she considers proper.
Judgment debtors of the Crown
(3) If, under subsection (2), a youth justice court judge orders forfeiture of a recognizance, the principal and his or her sureties become judgment debtors of the Crown, each in the amount that the judge orders him or her to pay.
Order may be filed
(4) An order made under subsection (2) may be filed with the clerk of the superior court or, in the province of Quebec, the prothonotary and, if an order is filed, the clerk or the prothonotary shall issue a writ of fieri facias in Form 34 set out in the Criminal Code and deliver it to the sheriff of each of the territorial divisions in which any of the principal and his or her sureties resides, carries on business or has property.
If a deposit has been made
(5) If a deposit has been made by a person against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it.
Subsections 770(2) and (4) of Criminal Code do not apply
(6) Subsections 770(2) (transmission of recognizance) and (4) (transmission of deposit) of the Criminal Code do not apply in respect of proceedings under this Act.
Sections 772 and 773 of Criminal Code apply
(7) Sections 772 (levy under writ) and 773 (committal when writ not satisfied) of the Criminal Code apply in respect of writs of fieri facias issued under this section as if they were issued under section 771 (proceedings in case of default) of that Act.