Set up to fail: the unintended consequences of multiple bail conditions.

• Author: Sprott, Jane B.
• Position: Canada

The principles contained within the Youth Criminal Justice Act (YCJA) make it clear that less serious offences (e.g., mischief, vandalism, shoplifting) should be dealt with outside of court. There is, for example, a presumption that non-court responses are best for non-violent, minor crimes (s 4). The Act also directs police to consider a range of other options before charging youths (s 6). These clear directions have resulted in substantial declines in the rate of charging youths and sending them to youth court (Bala, Carrington, and Roberts 2009). However, there has been almost no change in the number (or rate) of youth court cases where the most serious charge is failing to comply with an order (typically bail conditions) (CANSIM, table number 2520048). In 2009, one in every 12 cases in youth court had failing to comply with an order (FTCwO) as the most serious charge. This means that, in these cases, the most serious charge involved behaviours that would not be considered criminal except for the fact that they were contained in a court order (e.g., curfews, non-communication orders, obeying parent/guardian). The fact that these FTCwO cases have been brought to court at a relatively stable rate throughout this past decade is interesting for two reasons. First, there are simply fewer cases in youth court and thus one might expect that fewer youths would be returning to court for failing to comply with bail conditions. Second, the principles contained within the YCJA strongly emphasize diversion for minor types of offences. Curfew violations and not obeying a parent/ guardian, one could argue, are relatively minor "offences."

Case law maintains that bail conditions should only be placed on youths in an effort to ensure that they return to court and/or to reduce the danger to the public by constraining their behaviour in the community (see, e.g., Keenan v Stalker or R v Oakes). Despite the case law, Bala and Anand (2009: 302) suggest some youths are still released "on onerous conditions that are unrelated to their risk of re-offending or the legitimate concerns about the protection of the public or victims." In examining the relationship of bail conditions to the alleged offence, Sprott and Doob (2010) found that some of the conditions placed on youths appeared to have a logical link to the offence and to plausibly reducing danger to the public, given the nature of the charges. For example, weapons restrictions and location restrictions were significantly more likely to be attached to release orders for violent offences. However, weapons restrictions were also imposed in a quarter of the theft under/possession of stolen property cases and close to a third of the cases where the most serious offence was an administration of justice offence. It was not at all clear why weapons restrictions were placed on those types of relatively minor, non-violent offences. There has been some speculation that bail conditions are more "related to general behaviour modification or 'teaching' the young person a lesson than to the facts of the offence" (Harris, Weagant, Cole, and Weinper 2004: 374). In addition, research has revealed that youths have an average of around six bail conditions placed on them, with most receiving relatively broad conditions such as "obey the rules of the house," curfews, requirements to live at a specific location, and non-communication orders (Moyer and Basic 2004; Moyer 2005; Sprott and Doob 2010; Varma 2002).

Although conditions are supposed to relate to ensuring that youths return to court and/or decreasing danger to the public, what happens in practice appears to be somewhat different. This finding, coupled with the relatively large number of conditions placed on youths, could be problematic for several reasons. First, one could argue that bail conditions are state intrusions on liberty flowing from a criminal charge and thus they are, in fact, punitive. Second, numerous conditions may increase the likelihood of youths coming back into court for failing to comply with an order.

Conditions of release, though not legally intended to punish youths, may be experienced as punishment. More generally, the argument that conditions are not meant as punishment and are therefore not punitive is questionable. Similar arguments have been made with respect to the use of (adult) pre-trial custody--it is not punishment because there has been no conviction and thus detention is not meant as a punishment. However, as Madam Justice Arbour observed (R v Wust at 23), "[W]hite pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction." The same is true for bail conditions where some provinces (e.g., Ontario) take into account onerous conditions and time spent subject to those conditions, when arriving at a sentence (see, e.g., R v CR; R v Downes; R v Ijam; R v Panday). For example, in R v CR, the court held that when a youth has been on release for a lengthy period and has been subject to "very onerous conditions," this may be considered a mitigating factor at sentencing. If conditions are considered punitive and thus a mitigating factor when arriving at a sentence after a guilty finding, it is hard to see how one could argue that the conditions were not punitive before the finding of guilt.

Moreover, if there is little connection between the conditions imposed and the alleged offence, the conditions may well be punitive. As Justice Weagant has argued,

[I]t is obvious that certain conditions given to young people are "boiler plate" as opposed to logically connected to the facts in front of the court ... For example, where minor assaults occur on school property during school hours, is not a curfew or house arrest so totally unconnected to the event that it can only be considered a punitive measure at best? (qtd. in Harris et al. 2004: 375).

In addition, whatever the intention of the court, one has to consider what happens once the youth leaves the court. In some jurisdictions (e.g., Toronto) there are special bail compliance units (BCU), which have police officers "conduct bail compliance checks any hour of the day or night. Those out on bail are required to appear to police within five minutes when the officers arrive unannounced at the door of their home or workplace" (Shepherd 2009: 1). As McLellan (2010: 71) notes "[t]he random checks of the BCU are done without deference to a court's imposition of conditions that do not require monitoring." What makes this particularly problematic is that the youths have not been found guilty of the criminal offence that triggered the conditions.

Trotter (2010) has also argued that bail conditions should be approached with restraint and made as burden-free as possible because there are coercive features to them. There are, for example, punishments for not abiding by them (arrest, detention, forfeiture of money, implications for sureties), and the conditions themselves limit various freedoms (movement, association, communication). Trotter (2010) also considers the length of time accused are subjected to the conditions. The length of time it takes to resolve a case is something that must be kept in mind when considering bail conditions. In 2008/2009, the median time to process a youth case (from first court appearance to sentencing) was 119 days. Though 52% of cases were processed in four months or less, 8% took longer than a year to reach case completion, and only 9% of cases were completed on their first appearance (Milligan 2010). With case processing taking approximately four months on average, youths could be subject to numerous bail conditions for a considerable length of time.

Subjecting youths to numerous conditions may have the unintended consequence of setting youths up to accumulate further criminal charges of failing to comply with a court order. It could be that the courts themselves are creating these FTCwO cases by placing numerous conditions on youths and/or having youths subject to such conditions for extended periods. These cases, in turn, get brought to court, even though one could argue that, given the principles of the YCJA, they should not be, since the behaviours are not serious or violent criminal offences.

The current study tracked a random sample (N = 285) of youths who were held for a bail hearing and ultimately released from a large Toronto court. Specifically, all subsequent court appearances were identified to explore what happened after the bail hearing. In particular, we investigated the relationship between conditions, time subject to the conditions, and the likelihood of the youths returning to court for FTCwO.

Method

Sample

All bail orders for youths held for a bail hearing and then released (from a large youth court in...