Youth Defence

Top Ten Things to Remember About Youth Bail

1.  The amended YCJA bail provisions in section 29 of the Youth Criminal Justice Act are a complete code regarding judicial interim release for young persons. 

2. Section 29(3) of the YCJA places the onus upon the Crown to establish the basis for a Young Person to be detained. The SCC decision in Antic should be considered as well in terms of the ladder of release. Just because someone is under the age of 18 does not automatically mean release is only possible with the involvement of a guardian.

3. The reverse onus provisions set out in s.515(6) C.C. and in section 524 C.C. are inconsistent with, and excluded by, the amended section 29(2) and the addition of s.29(3) YCJA, and therefore are no longer applicable to accused young persons following the passage of Bill C-10 in 2012. 

4.  Section 29(2) YCJA establishes the criteria as the only basis for pre-trial detention of an accused young person where a youth court judge or justice may order a YP to be detained in custody only if the Crown proves all of the following on the balance of probabilities. 

5. In conducting a youth bail hearing, consider section 29(2) as a step by step guide by judges to determine if the Crown has established a case for detention. The factors for detention are [a] type of offence, [b] justification for detention and [c] no release conditions which would address the risk presented by the young person based on the justification[s] for detention determined by the court.

6. The judgment of the SCC in R. v. D.B. [2008] 2 S.C.R. 3, 2008 SCC 25 holding that it is a principle of fundamental justice that young persons are entitled to a presumption of diminished moral blameworthiness or culpability, has been added to the Declaration of Principles set out in section 3 YCJA. The court must have regard to this principle when determining if there are exceptional circumstances which justify detention.

7. The phrase “history that indicates a pattern of findings of guilt” was considered in by the SCC in R. v. S.A.C. 2008 SCR 47 and by the ABCA in R. v. J.(C.D.)(2005) 205 CCC (3d) 564 (Alta.C.A.). The SCC held that in order to demonstrate a history indicating a pattern there should be minimum of three prior findings of guilt. The ABCA held that the prior offences should have “recognizable regularity, consistency or similarity”. However, the number of previous findings of guilt by itself is not solely determinative of whether a pattern is established. It is the number of offences and then the circumstances that should be considered in total in assessing whether a pattern has been demonstrated.

8. Detention as a child protection, mental health or other social measure is prohibited.

9. If a young person is detained by the Justice of the Peace, section 33 notice can be given to allow the Young Person to have that JP decision on bail reviewed by a Provincial Court Judge. This equates to a new bail hearing in Youth Court. 

10. Timely access to bail is important for Young Persons. If a regional court does not have a court sitting soon, matters should be adjourned to a major centre for bail only. This is not a formal waiver of the charges to another jurisdiction.  

• YCJA Q&A: Conditional Discharges and the YCJA
• YCJA Basics: Bail at most.
• YCJA Basics: Why the YCJA?