Going to Court: Chapter 9 - Pretrial Detention

• Study notes on going to court, chapter 9

Pretrial Detention

• The YCJA mandates young people held in detention prior to trial be detained separately from adults.
• Exception to the rule occurs if there is no youth facility is available, or it would be unsafe.
• Interim release allows arrested people to release into the community under specific conditions while waiting for court appearance, commonly referred to as bail.
• The Criminal Code requires youth to see a judge within 24 hours of detention, but most appear within 72 hours.
• Prosecutors must justify pretrial detention based on primary grounds (ensuring court appearance) or secondary grounds (public protection) at the hearing.
• The YCJA made the "responsible person" option mandatory before detaining a young offender.
• The court must investigate if a suitable responsible person, like a parent/family friend, can assume control and ensure the youth's compliance.
• Responsible person may also provide security for the youth's release, the youth can refuse this option.
• Criminal Code allows for release with conditions, such as bail, agreeing to appear in court, or following specific rules like curfews, school attendance, and avoiding certain people.
• If a youth breaks these conditions, they may be charged and returned to court.
• The length of remand has decreased to an average of 6 to 9 days from 21 days in the early 2000s.
• Net widening is another way to criminalize youth who are only accused of the crime.
• Pretrial detention can negatively impact certain youth, especially homeless and Aboriginal youth.
• Friends or relatives are not likely to be considered responsible by the court or have poor parental relationships.
• Many youth are detained not for committing serious crimes, but because they either didn't follow court or parental directions or don't have a responsible adult available to take responsibility for them.

Adult Sentencing and the YCJA

• Presumptive offence is an offence of murder, attempted murder, manslaughter, or aggravated sexual assault, or any other serious violent offence that an adult would be subject to more than two years' imprisonment committed by a youth aged 14 or older.
• Whether a youth was liable to an adult sentence depended on the nature of the offence, the youth's age, and the sentence an adult would receive for the same offence.
• This provision was determined to be a Charter violation and was removed under the changes imposed by Bill C-10.
• Bill C-10 simplified the process for applying adult sentences under the YCJA.
• Three criteria must be met for a youth to face an adult sentence being the youth must be over 14.
• The youth must be found guilty of a serious violent offence to face an adult sentence.
• The youth has to face a sentence an adult would receive of more than two years.
• The Attorney General has less discretion in seeking an adult sentence and, must notify the court, youth, and their parents
• A hearing is required before an adult sentence is imposed, and Provinces can still set the age of liability to 15.
• The UN has also criticized Canada for applying adult sentences to those under 18.

Court Proceedings

• Youth trials start with a plea.
• The majority of youth cases involve guilty pleas, then the court then proceeds to sentencing.
• Where a youth pleads not guilty, the case goes to trial, he or she may now elect a trial by jury if an adult sentence is being considered or if facing a charge of murder.

The Role of Lawyers and Legal Rights

• The YCJA allows for legal representation with privately retained lawyers, Legal Aid lawyers, duty counsel, or court-appointed lawyers.
• Lawyers act as advocates for the youth in court proceedings.
• Lawyers must advise young clients of their right to remain silent, provide a legal defense, and try to prevent a conviction.
• Lawyers have rights to consult a parent, access to a lawyer, and presence of a lawyer and other adults when making statements to the police, Rights to privacy (media publication bans)
• Youth are to be informed of their legal rights in language that is age-appropriate.

Court Sentencing

• Sentencing conferences occur through Professionals for the youth such as judge, police officer, prosecutor, youth worker to make recommendations to the court regarding an appropriate sentence for the individual.
• These professionals act as an advisory body with regards to sentences, sentence reviews, extrajudicial measures, conditions for interim release, and reintegration plans.
• A pre-sentence report is a document prepared by a probation officer that provides the court with information about the offender involving; prior criminal history, family situation, social environment, and personal development
• Before sentencing, the court must consider recommendations from a sentencing conference, pre-sentence reports, and any other information provided by parents or counsel.

Sentencing Principles

• A youth justice court that imposes a youth sentence on a young person must determine the sentence in accordance with the principles.
• The sentence for a youth must not exceed the punishment that would be appropriate for an adult convicted of the same offence.
• The sentence must align with those given to similar young offenders in the region for the same offence and under similar circumstances.
• All reasonable alternatives to custody should be considered.
• Other Principles regarding the sentence involve the young person's involvement in the offence.
• The harm caused to victims and its foreseeability.
• Any reparation made by the young person.
• Time spent in detention due to the offence.

Youth Sentences

• Judicial Reprimand is a lecture from the judge; it technically does not constitute a “sentence.” along with the absolute discharge, does not result in a criminal record.
• Absolute discharge sentencing involves no criminal sanctions for the guilty youth, is free to leave the court with no penalty.
• Conditional discharge is viewed as similar to probation, but more lenient.
• After successful completion of the terms of the order, the person's criminal record is “erased”; in other words, the person is discharged without a conviction on his or her record
• Fines the court may impose a fine not to exceed $1,000, but it must consider the youth's ability to pay.
• Community service order: The court may order young people to perform unpaid and supervised community service for a period not to exceed 240 hours, with 12 months allowed for completion, as per food banks.
• Probation can be ordered as A probation means controlling and supervising a young person's behaviour while he or she is in the community.
• The maximum term for probation is two years.
• Treatment orders, intensive support, and supervision are similar to probation but offers more monitoring, support, and services.
• A Non-residential Attendance Order: under the YCJA allows the court to require a youth to attend a non-residential program for up to 240 hours.
• It is a potentially rehabilitative sentence and other conditions may be attached to the order, such as to refrain from alcohol or to not associate with certain persons.
• Custodial Sanctions: Can be imposed only if offence is violent, indictable, or youth has pattern of non-compliance with previous custodial or non-custodial dispositions.
• In all cases where a judge imposes a custody sentence, the court must state the reasons why a non-custodial sentence was not appropriate.
• Custody is accompanied by community supervision order after release