Bail Hearings

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 91-135

91

I. Introduction ................................................... 92

II. Fundamental Principles .......................................... 93

III. Canada’s Criminal Code and the YCJA ............................... 94

IV. Jurisdiction of the Court .......................................... 95

V. Detention Not to Be Used as a Substitute for Child Protection,

MentalHealth, orOther Social Measures ............................ 97

VI. When Parents Do Not Attend Bail Court ............................. 98

VII. Is a Detention Order Lawfully Available? ............................. 98

VIII. Who Bears the Onus? ............................................ 100

IX. The Test for a Detention Order: Part I—Groundsof Concern ............ 101

X. The Test for a Detention Order: Part II—Assessing the Plan of Release .... 105

XI. What Is a “Surety”? .............................................. 106

XII. What Is a “Responsible Person”? ................................... 108

XIII. The Qualities of a Good Plan of Release and aGood Surety or

ResponsiblePerson ............................................. 110

XIV. Bail De Novo Hearings ........................................... 115

XV. Bail Reviews ................................................... 115

XVI. Detention Reviews: “Myers Hearings” ............................... 117

XVII. Subsequent Adult Charges and Section 524 of the Criminal Code ........ 118

XVIII. Indigenous Young People ......................................... 119

XIX. Young Persons with Involvement in the ChildProtection/

ChildWelfareSystem: YoungPeople“InCare” ........................ 120

XX. Transferring a Young Person from Secure to Open Detention ............ 121

XXI. Preparing Your Client and the Plan of Release ........................ 124

XXII. Checklist for Youth Bail Court ...................................... 127

XXIII. Ethical Considerations for Prosecutors and Defence Counsel ............ 129

Appendix 5.1: Undertaking of a Responsible Person and of a Young Person ... 131

Appendix 5.2: Pre-Trial Detention Procedures in Selected Provinces ....... 134

Appendix 5.3: Bill C-75—Judicial Interim Release ...................... 135

Bail Hearings

5

© 2024 Emond Montgomery Publications. All Rights Reserved.

92 Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

One of Parliament’s explicit goals when introducing the Youth Criminal Justice Act1

was to reduce Canada’s incarceration rate for young persons at all stages of the youth

criminal justice process—including the pre-trial detention phase.2 Although the

incarceration rate of young people had seen modest declines in the few years prior to

the enactment of the YCJA, the rate fell more clearly once it came into force.3 While

the incarceration rate for sentenced young people fell quite dramatically, the incar-

ceration rate of young people in pre-trial detention did not decline as significantly.4 In

addition, the YCJA’s original bail provisions, which were in place from April 1, 2003

to October 23, 2012, were also subject to widespread criticism for being confusing,

ineective, and in dire need of reform.5 The provisions had been designed to place

limits on the applicability of the secondary grounds to youth bail hearings and to dis-

tinguish them from sections of the Criminal Code. But they oered little clarification

beyond that and incorporated references to the sentencing provisions of the YCJA,

which resulted in very convoluted and complicated hearings.

As a result, a great deal of conflicting jurisprudence arose. A series of reforms to

the YCJA contained in Bill C-10, the Safe Streets and Communities Act6 were directed

at simplifying the rules surrounding pre-trial detention. As will be discussed in this

chapter, the new bail provisions are much clearer and simpler, and aim to ensure that

fewer young persons are held in pre-trial detention. The amendments came into eect

on October 23, 2012.

Readers should keep in mind the dates mentioned above when reviewing any juris-

prudence. Cases decided under the YCJA’s original bail regime must be cautiously

approached because they may have limited value in light of the amendments con-

tained in the SSCA.

1 SC 2002, c 1 [YCJA].

2 R v RD, 2010 ONCA 899 at para 41.

3 This issue is discussed further in Chapter 10, Sentencing. See also Department of Justice,

“The Youth Criminal Justice Act Summary and Background” (7 July 2021), online: Govern-

ment of Canada <https://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/back-hist.html>.

4 See Statistics Canada, Adult and Youth Correctional Statistics in Canada, 2016/2017, by Jamil

Malakieh, Juristat, Catalogue No 85-002-X (Ottawa: Statistics Canada, June 2018) at Youth

Incarceration Rate Continues to Decline, online: <https://www150.statcan.gc.ca/n1/pub/85-

002-x/2018001/article/54972-eng.htm#n14-refa>.

5 See e.g. The Honourable D Merlin Nunn, Spiralling Out of Control: Lessons Learned from a Boy in

Trouble: Report of the Nunn Commission of Inquiry (Halifax: Government of Nova Scotia, 2006),

online (pdf ): <https://novascotia .ca/just/nunn_commission/_docs/Report_Nunn_Final.pdf>.

6 Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity

Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional

Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other

Acts, 1st Sess, 41st Parl, 2011 (assented to 13 March 2012), SC 2012, c 1 [SSCA].

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter 5 Bail Hearings 93

Detention before sentencing is dealt with in sections 28 to 31 of the YCJA. This

chapter explores the judicial interim release provisions of the YCJA and oers stra-

tegic advice for counsel. The chapter will address the following questions, among

others:

• What fundamental values animate the YCJA’s pre-trial detention provisions?

• What court has jurisdiction to hear a young person’s bail hearing?

• What requirements must be met before the Crown can seek a detention order

for a young person?

• What happens if a young person’s parents refuse to come to bail court?

• How do the primary, secondary, and tertiary grounds for detention apply in

youth bail hearings?

• What is a bail de novo, and when is a bail de novo hearing available? How is it

dierent from a bail review?

• What is a surety?

• What is a “responsible person”?

• What are the qualities of a good surety or responsible person?

• What terms and conditions are appropriately placed on a young person’s form

of release?

• How do I prepare parents to testify at their child’s bail hearing?

• If my client is detained in secure custody, is it possible to have them transferred

to open custody instead?

II. Fundamental Principles

Pre-trial detention is not to be used as a form of punishment. It is only to be used to

address the specific grounds of concern held by the Crown, and only if it is in fact the

least restrictive alternative in all the circumstances capable of meeting the goals of

the YCJA.

The same constitutionally protected right to liberty and cautious approach to bail

that has been recognized by the courts in the adult system applies to young people.

In R v Morales, the Supreme Court of Canada noted that section 11(e) of the Charter,

which provides that “[a]ny person charged with an oence has the right… not to be

denied reasonable bail without just cause,” makes it clear that “pre-trial detention is

extraordinary in our system of criminal justice.”7

Iacobucci J echoed these sentiments in his dissent in R v Hall:8

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is

never regained and can never be fully compensated for; therefore, where the potential

7 [1992] 3 SCR 711, 77 CCC (3d) 91 at 711.

8 2002 SCC 64.

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