Post # 188
1000 words; 5 minutes to read
Audio summary courtesy of volunteer Averi Brailey.
Far fewer young people are being arrested and detained in Canada today thanks to the changes made in the Youth Criminal Justice Act (YCJA) in 2003. However the situation is still far from ideal, with “too many youth… still experiencing pre-trial incarceration after being charged with a crime. It is evident that race, gender, and regional location all play a role in young people’s diverse experiences in the bail system across Ontario.” Hundreds of young people are still in jail on any given day in Canada, the vast majority in remand awaiting trial or some other disposition for their case, often with severe and long lasting consequences.
These are the conclusions of a report issued in 2021 by John Howard Ontario that studied the experience of young people in Ontario with the bail and remand system. The report looked at many thousands of cases as well as interviewing young people and stakeholders.
Youth system is different
The legislation governing bail for youth (YCJA) is different from that for adults. It specifies that youth can only be detained under certain limited conditions and makes it, at least in theory, more difficult to impose bail conditions. However, as we have seen with adults, conditions specified in law or set by the Supreme Court, are not always observed in practice.
Still too many held on remand
On the good side, arrests of young people have declined sharply. With fewer youth being arrested, the number of youth bail cases in Ontario fell by 2/3 from 2006 to 2017. And bail is being granted more often; in 2018 only 2% of bail decisions for youth in Ontario were denials. However, although fewer youth are being detained, those who are face longer periods in jail prior to being bailed, and a longer time to case resolution, so their situation is worse.
“These youth have not been found guilty of a crime and the courts have not yet determined that they are unsuitable for release on bail, yet they experience prolonged detention waiting for that decision. Many of these young people are later granted bail and/or have their charges withdrawn, begging the question as to why they were detained in the first place.”
Longer time to get bail
The longer time in remand is often a result of multiple court dates required. Some cases take five or more court appearances, and, as in adult bail court, these may involve weeks between one appearance and another. Some youth still spend weeks or months in jail before being granted bail. In other cases a young person may be held for weeks pending a bail decision, only to have the original charges withdrawn.
Too many conditions
Despite the law, youth given bail often have many conditions imposed – 6 to 9 conditions being quite typical – and, not surprisingly, these conditions often lead to new criminal charges even when the original charges that created the conditions are dropped. Many of these conditions concern things like curfews and ‘abiding by the rules of the household’ even though these conditions are not associated with reduced offending. Young people may be prevented from seeing friends, or face curfews that prevent part-time work.
“Stakeholders and youth with lived experience were nearly unanimous in their view that bail conditions imposed on youth are overly restrictive and often unrelated to the legislated purposes.” These young people are ‘set up to fail’.
The Supreme Court has found that the imposition of many bail conditions is related to a greater likelihood of a guilty plea. The result is that some young people end up cycling back through the system repeatedly but only related to violation of previous conditions, not to any meaningful new crime.
Some youth have many challenges
As in the adult criminal justice system, many youth who are arrested are also facing other challenges such as mental health issues or homelessness, or are Crown wards as a result of being taken into care due to serious family problems.
Young people who are living in foster care or situations other than family homes are among the most vulnerable yet they are also most likely to be jailed because they do not have a home or other place to go to if bailed. Even though “The YCJA clearly states that detention should not be used for welfare reasons, yet in many cases, it is clear to stakeholders that this is happening regardless.” In other words, homelessness is treated as unacceptable.
These youth may also face more stringent bail conditions. As one instance, youth living in group homes can face additional criminal charges for refusing to do dishes or clean their room as requested by staff.
Youth in remand are disproportionately Indigenous and Black – from 4 to 5 times their proportion in the youth population. The over-representation of some minority youth in every area of the justice system is also consistent with what happens with adults in Canada.
Severe negative effects
Being jailed on remand can have devastating consequences for young people, including increased risk of suicide and substance abuse. And these effects can be long-lasting. Being jailed also interferes with schooling and work, and can disrupt family relationships. And unnecessary guilty pleas produce the serious lifetime effects of a criminal record.
“Stakeholders indicated that, often, there are no plans put in place to address the disruption in the youth’s education or supports provided to catch them up. For a young person, especially those that may be struggling in school, spending weeks away could be catastrophic, and depending on the format of their school, could lead to the loss of the semester.”
There have been some major successes in youth justice in Canada, notably a large decline in charges and in young people with criminal sentences that carry lifetime consequences. Those successes are important but there is more to do. There are still too many young people spending too much time in jail with not enough alternatives that would support them in building a positive and crime free life. And this applies especially to vulnerable young people – Indigenous, Black, homeless, or facing mental and physical health challenges.