The criminal offence of entering any Shoppers Drug Mart in Ontario: criminalizing ordinary behaviour with youth bail conditions.

• Author: Myers, Nicole M.

Introduction

This article examines the disjuncture between the bail provisions that apply to youths (contained in the Criminal Code of Canada and the Youth Criminal Justice Act [YCJA]) and the manner in which bail is being used for youths and imposed by justices of the peace2 in Ontario. It presents evidence supporting the conclusion that conditions of release that are routinely imposed are often inconsistent with the relevant legislation.

Legislative framework

Consistent with the presumption of innocence is the presumption that accused young persons should be released on bail before their trial. After being arrested, an accused young person who is not released by the police must, under Canadian law, be brought before a justice to determine whether detention is necessary. Although there is a specific list of exceptions, the rule in law is that the Crown must 'show cause' why the accused young person should not be released (Criminal Code, s 515(1)). If the justice is not convinced that the accused young person should be detained, the young person is to be released without a suxrety (3) and without conditions. Five types of release are listed in section 515(2) of the Code, starting with the accused young person 'giving an undertaking with such conditions as the justice directs' (s 515(2)(a)). Section 515(2)(c) involves the accused young person 'entering into a recognizance ... with sureties ... without the deposit of money.' What is most important about this list from the point of view of the present discussion is that section 515(3) states, "The justice shall not make an order under any of the paragraphs 2(b) to 2(e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made." Said differently, there is a presumption in favour of less onerous conditions of release in cases in which release is justified.

Hence, the Criminal Code clearly stipulates that a ladder approach be used when determining the forma bail release order will take. This means the least onerous form of release is to be presumed appropriate -a release on an undertaking without conditions--unless the Crown can show cause why a more onerous form of release is warranted (s 515(1)). (4) According to this approach, the justice is to consider the next rung on the ladder only after the previous form of release has been deemed inappropriate (s 515(3)). (5) For example, the justice must decide that a release on the accused's own recognizance without deposit and without a surety is not sufficient to ensure that the accused will return to court and not commit further offences before considering a recognizance with a surety.

The principles and provisions of the YCJA override those found in the Criminal Code. Though the basic principles and procedures of youth bail are governed by section 515 of the Criminal Code, additional protections and considerations are stipulated within the YCJA that supersede any sections of the Criminal Code that are inconsistent with them (YCJA, s 28). Indeed the preamble of the YCJA outlines the Act's guiding principles, indicating that youths have "special guarantees of their rights and freedoms" and stipulating that the criminal justice system is to exercise restraint in the use of custody by reserving "its most serious intervention for the most serious crimes and reduc[ing] the over-reliance on incarceration for non-violent young persons." One limitation on the use of pre-sentence detention for youths is contained in section 29(1), which establishes that "[a] youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures." Section 29(2) states that "[i]n considering whether the detention of a young person is necessary for the protection or safety of the public ... a justice shall presume that detention is not necessary ... if the young person could not, on being found guilty, be committed to custody." (6) The legislation also provides an additional option for fashioning a release for youths who may otherwise be detained; section 31(1) states, "A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody." (7) Together, these sections of the YCJA suggest that custody for youths must be employed with restraint and additional efforts are to be made to ensure youths are not detained unnecessarily in pre-trial custody.

Despite the legally mandated ladder approach outlined in the Criminal Code, along with the presumption against detention and the additional protections provided for youths in the YCJA, being released on bail without a surety and without conditions is, as we will see, a relatively rare occurrence in the court-rooms observed for this study. Having a surety to secure release has become common practice for adults in some Ontario courts, a convention that was, arguably, not envisioned by the Criminal Code and is almost certainly not consistent with it (Myers 2009). Most youths (8) released on bail--at least in Toronto (9) --have conditions they must comply with while they are in the community. Conditions of release are often recommended by the Crown and imposed by the justice of the peace to constrain youths' behaviour while they are on bail. However, considering the relevant section of the Criminal Code (s 515(10)) any condition imposed should address the ground(s) for detention in relation to which youths might have otherwise been detained. This means conditions are supposed to be designed to ensure youths appear in court, do not commit any further offences, or do not interfere with the administration of justice. Indeed, Trotter (2010) suggests that care must be taken in the selection of conditions to ensure they fulfil these stated purposes. Consistent with the presumption of innocence, bail is designed to be as burden-free as possible while also ensuring youths appear in court and do not continue offending. (10) This means conditions "ought to be approached with restraint and should only be imposed to the extent that they are necessary to give effect to the criteria for release" (Trotter 2010: 241).

Accused young people may be subject to release conditions for a considerable period of time, a reality that is inconsistent with one of the principles of the YCJA. Section 3(b)(iv) of the YCJA emphasizes the importance of "timely intervention that reinforces the link between the offending behaviour and its consequences." Across Canada in 2008/9 the median time to process a youth case (from the first court appearance to sentencing) was 119 days (Milligan 2010). Though 52% of cases were processed in four months or less, 8% took longer than a year to reach completion and only 9% of cases were completed on the first appearance (Milligan 2010). In addition, research in one Toronto courtroom revealed that youths had an average of 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 (Sprott and Doob 2010). As found by Sprott and Myers (2011), the many conditions being placed on youths and their being on bail for long periods of time together contribute to youths' likelihood of breaching a court order.

Although conditions of release should infringe on the liberty of young people as little as possible while serving the functions we have just described, Section 515(4) of the Criminal Code provides little explicit guidance on the number and type of conditions that can be attached to release orders. While some standard conditions are enumerated in the Criminal Code, such as remaining in the jurisdiction, not communicating with the victim, and notifying the police of any change in address, most conditions that are routinely imposed fall under the rather vague provision that directs accused to "comply with such other reasonable conditions specified in the order as the justice considers desirable" (s 515(4)(f)). This broad discretion means that a wide range of conditions can be justified under this paragraph, (11) The difficulty is that bail conditions put youths in jeopardy of being charged with a criminal offence for doing something that is criminal only because it is prohibited by the bail conditions. Though not the legislated or perhaps the intended purpose, conditions of release are likely experienced as punishment, since youths are prohibited from engaging in legal activities that are available to other youths. As Ontario Court of Appeal Justice Marc Rosenberg noted in R v McDonald (at para 48) with respect to pre-sentence imprisonment, "[T]o pretend that pre-sentence imprisonment does not occasion a severe deprivation and that it is not punitive would result in a triumph of form over substance" One could equally argue, we believe, that conditions of release have this same characteristic, though one presumes that conditions of release are generally less punitive than custodial sentences.

Bail violations comprise a non-trivial proportion of the most serious charges in cases going into Canadian youth courts. In Canada, in 2009, 12.2% of all youths charged with an offence were charged with failing to comply with an order (most of the orders that were violated were bail orders, since there is another offence in section 137 of the YCJA that involves failure to comply with a sentence). Furthermore, in 2009, 89% of youths accused of failure to comply were criminally charged rather than dealt with by way of a formal or informal diversionary measure. In contrast, only 43% of youths recorded as being apprehended by the police for any offence were formally charged that year (Statistics Canada 2010). Repeatedly violating a condition of release "may justify detention, even if the original charge could not result in a custodial sentence"...