Bail for Young Accused

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General Principles

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:

Detention as social measure prohibited

29 (1) A youth justice court judge or a justice may impose a condition set out in subsections 515(4) to (4.2) of the Criminal Code in respect of a release order only if they are satisfied that

(a) the condition is necessary to ensure the young person’s attendance in court or for the protection or safety of the public, including any victim of or witness to the offence;

(b) the condition is reasonable having regard to the circumstances of the offending behaviour; and

(c) the young person will reasonably be able to comply with the condition.

[omitted (2) and (3)]
2002, c. 1, s. 29; 2012, c. 1, s. 169; 2019, c. 13, s. 163; 2019, c. 25, s. 368.

– YCJA

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Review and Appeal

Under s. 33 of the YCJA an order for release can be reviewed.

Procedure

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

1. have the information or indictment read to the accused
2. inform him of his right to counsel;
3. notify accused of possibility of an adult sentence.

See also R v MTS, 2006 NSPC 8 (CanLII), per Burrill J

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.
[omitted (2)]
2002, c. 1, s. 20; 2019, c. 13, s. 160.

– YCJA

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Release

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.

Notice to prosecutor

(2) An application under subsection (1) [application for bail or detention] for release from custody shall not be heard unless the young person has given the prosecutor at least two clear days notice in writing of the application.

Notice to young person

(3) An application under subsection (1) [application for bail or detention] for detention in custody shall not be heard unless the prosecutor has given the young person at least two clear days notice in writing of the application.

Waiver of notice

(4) The requirement for notice under subsection (2) [application for bail or detention – notice to Crown] or (3) [application for bail or detention – notice to youth] may be waived by the prosecutor or by the young person or his or her counsel, as the case may be.

Application for review under section 520 or 521 of Criminal Code

(5) An application under section 520 [accused-requested bail review] or 521 [crown-requested bail review] of the Criminal Code for a review of an order made in respect of a young person by a youth justice court judge who is a judge of a superior court shall be made to a judge of the court of appeal.

Nunavut

(6) Despite subsection (5) [application for bail or detention – application for s. 520/521 review], an application under section 520 [accused-requested bail review] or 521 [crown-requested bail review] of the Criminal Code for a review of an order made in respect of a young person by a youth justice court judge who is a judge of the Nunavut Court of Justice shall be made to a judge of that court.

No review

(7) No application may be made under section 520 [accused-requested bail review] or 521 [crown-requested bail review] of the Criminal Code for a review of an order made in respect of a young person by a justice who is not a youth justice court judge.

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 [bail for s. 469 offences] of the Criminal Code, a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section.

Review by court of appeal

(9) A decision made by a youth justice court judge under subsection (8) [interim release by youth justice court judge only] may be reviewed in accordance with section 680 [review by court of appeal] of the Criminal Code and that section applies, with any modifications that the circumstances require, to any decision so made.

– YCJA

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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.

– YCJA

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However, there are numerous modifications within the YCJA.

Burden

The onus in bail matters is upon the Crown to establish the basis for detention. Section 29(3) states:

29
[omitted (1) and (2)]

Onus

(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.

2002, c. 1, s. 29; 2012, c. 1, s. 169; 2019, c. 25, s. 368.

– YCJA

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Justification

Section 29(2) sets out the three preconditions that must be satisfied before a youth court justice may order a young person detained.

29
[omitted (1)]

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.

[omitted (3)]
2002, c. 1, s. 29; 2012, c. 1, s. 169; 2019, c. 25, s. 368.

– YCJA

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The three grounds are similar to those found in s. 515:

1. basis that the offence is "serious" or the history of charges or convictions show a "history that indicates a pattern". (s. 29(2)(a))
2. 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
3. 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."

Detention

Designated place of temporary detention

30 (1) Subject to subsection (7), a young person who is detained in custody in relation to any proceedings against the young person shall be detained in a safe, fair and humane manner in any place of temporary detention that may be designated by the lieutenant governor in council of the province or his or her delegate or in a place within a class of places so designated.

Exception

(2) A young person who is detained in a place of temporary detention under subsection (1) may, in the course of being transferred from that place to the court or from the court to that place, be held under the supervision and control of a peace officer.

Detention separate from adults

(3) A young person referred to in subsection (1) shall be held separate and apart from any adult who is detained or held in custody unless a youth justice court judge or a justice is satisfied that, having regard to the best interests of the young person,

(a) the young person cannot, having regard to his or her own safety or the safety of others, be detained in a place of detention for young persons; or

(b) no place of detention for young persons is available within a reasonable distance.

Transfer to adult facility

(4) When a young person is detained under subsection (1), the youth justice court may, on application of the provincial director made at any time after the young person attains the age of eighteen years, after giving the young person an opportunity to be heard, authorize the provincial director to direct, despite subsection (3), that the young person be temporarily detained in a provincial correctional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest.

When young person is twenty years old or older

(5) When a young person is twenty years old or older at the time his or her temporary detention under subsection (1) begins, the young person shall, despite subsection (3), be temporarily detained in a provincial correctional facility for adults.

Transfer by provincial director

(6) A young person who is detained in custody under subsection (1) may, during the period of detention, be transferred by the provincial director from one place of temporary detention to another.

Exception relating to temporary detention

(7) Subsections (1) and (3) do not apply in respect of any temporary restraint of a young person under the supervision and control of a peace officer after arrest, but a young person who is so restrained shall be transferred to a place of temporary detention referred to in subsection (1) as soon as is practicable, and in no case later than the first reasonable opportunity after the appearance of the young person before a youth justice court judge or a justice under section 503 of the Criminal Code.

Authorization of provincial authority for detention

(8) In any province for which the lieutenant governor in council has designated a person or a group of persons whose authorization is required, either in all circumstances or in circumstances specified by the lieutenant governor in council, before a young person who has been arrested may be detained in accordance with this section, no young person shall be so detained unless the authorization is obtained.

Determination by provincial authority of place of detention

(9) In any province for which the lieutenant governor in council has designated a person or a group of persons who may determine the place where a young person who has been arrested may be detained in accordance with this section, no young person may be so detained in a place other than the one so determined.

2002, c. 1, s. 30;

2019, c. 13, s. 164

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Release

Responsible Person

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.

Removing young person from care

(4) A young person, a person in whose care a young person has been placed or any other person may, by application in writing to a youth justice court judge or a justice, apply for an order under subsection (5) if

(a) the person in whose care the young person has been placed is no longer willing or able to take care of or exercise control over the young person; or

(b) it is, for any other reason, no longer appropriate that the young person remain in the care of the person with whom he or she has been placed.

Order

(5) When a youth justice court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he or she was placed under subsection (1), the judge or justice shall

(a) make an order relieving the person and the young person of the obligations undertaken under subsection (3); and

(b) issue a warrant for the arrest of the young person.

Effect of arrest

(6) If a young person is arrested in accordance with a warrant issued under paragraph (5)(b), the young person shall be taken before a youth justice court judge or a justice without delay and dealt with under this section and sections 28 to 30.

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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.

Breach

A breach of a release to a 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.

Punishment

(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.

– YCJA

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Section 469 Offences

Only a youth court judge may issue release of an accused charged with an offence under s. 469.

Section 33(8) addresses release for young persons charged with an offence under s. 469:

33
[omitted (1), (2), (3), (4), (5), (6) and (7)]

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.
[omitted (9)]

[annotation(s) added]

– YCJA

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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.

– [of the Youth Criminal Justice Act YCJA]

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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.

– YCJA

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See Also

• Sentencing Young Offenders