Type of document: Prosecution Directive
Effective date: November 14, 2017

Judicial interim release (bail)

The Youth Criminal Justice Act contains a unique bail regime, distinct from the Criminal Code regime for adults that recognizes the special circumstances and inherent vulnerability of youth.

Pre-trial detention should never be used as a substitute for child protection, mental health or other social measures. While protection of the public remains a paramount concern in any bail decision made by the Prosecutor, wherever possible, young persons should be managed in the community. At the same time, young persons who pose a risk to public safety may be detained.

The YCJA directs that a detention order may be lawfully imposed in only two situations:

  1. the young person has been charged with a serious offence or
  2. the young person has a history that indicates a pattern of conduct evidenced either by outstanding charges or by findings of guilt.

A young person is presumed innocent and the Prosecutor must be aware of the impact of even a brief period of detention in custody upon a young person. Even a brief period of detention in custody affects the mental, social and physical life of a young person and their family. The Prosecutor must consider the following additional factors when determining a position on bail:

  1. the nature and seriousness of the offence
  2. the young person’s prior youth court record and/or any outstanding charges (or other relevant conduct)
  3. whether the victim was a child
  4. the safety of any witnesses or victims
  5. concern that the young person will not appear in court if released in the community
  6. evidence of a “substantial likelihood that the young person will, if released from custody, commit a serious offence”
  7. public confidence in the administration of justice
  8. the adequacy of the proposed plan of release, including the suitability of any proposed community support programs, a surety, or a responsible person
  9. whether the Prosecutor will seek a custodial sentence if the young person is found guilty after trial
  10. the needs of Indigenous young persons
  11. young persons with special requirements and
  12. the unique vulnerabilities of young persons presently engaged with the child welfare system, including their inability to access sureties or responsible persons, through no fault of their own.

The Prosecutor must ensure that efforts are made to notify the victim of any release order, the conditions of release, including non-communication and any order detaining the accused. In all cases where there is reason to have concern for a victim’s safety, the Prosecutor must ensure that victim notification occurs as soon as possible. On request, the victim must be provided with a copy of the court order.

Reference should be made to the Judicial Interim Release (Bail) Directive for further direction on Options and Conditions for Release.

Bail de novo

The YCJA provides that either the defence or the Prosecutor may bring an application for a new bail hearing before a youth justice court judge only if the original order was made by a justice of the peace. This application, for a bail de novo, is distinct from an application for a bail review. No new information is required and there is no deference to the justice of the peace.

The Prosecutor may bring an application for a bail de novo hearing before a youth justice court judge only with the prior approval of the Crown Attorney or designate.

Referral to child welfare agencies

Prosecutors have an obligation under the Child and Family Services Act that directs them to immediately contact a Children’s Aid Society when they have reasonable grounds to suspect a child has been or is likely to be a victim of physical, sexual or emotional harm.

In addition to this obligation, the Prosecutor should bring concerns about a young person’s need for child protection to the court’s attention at the earliest opportunity. The YCJA provides for the court at any stage of the proceedings to refer the young person to a child welfare agency for an assessment to determine whether the young person is in need of child welfare services.

Election as to mode of trial

In cases involving homicide or where an adult sentence is sought, the YCJA directs that a young person shall elect the mode of trial and have the option to have a trial in the Ontario Court of Justice before a judge without a jury or in the Superior Court of Justice with a judge alone or with a judge and jury.

The YCJA directs that if a young person elects to be tried by in the Ontario Court of Justice before a judge without a jury or in the Superior Court of Justice with a judge alone, the Attorney General may require the young person to be tried by a court composed of a judge and jury in the Superior Court of Justice. If a Prosecutor determines a jury trial would be appropriate the Attorney General’s consent must be obtained.

The Prosecutor must have the approval of her Crown Attorney or designate and the Assistant Deputy Attorney General - Criminal Law prior to commencing the process to seek the Attorney General’s consent.

Appointment of counsel by court order

The YCJA states that a young person “has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person.” It is important that young persons retain counsel as early as possible to ensure their rights are protected.

In addition to obtaining private counsel, there are three avenues for a young person to access publicly funded representation. First, they may utilize the services of duty counsel. Second, they may apply to Legal Aid Ontario for representation. Third, they may apply to a youth justice court judge for an order appointing publicly funded counsel if Legal Aid Ontario has denied their application.

When determining whether to accept an offer of extrajudicial sanctions, young persons are not entitled to court ordered publicly funded counsel and so may rely on the services of duty counsel. Prosecutors must oppose applications for court ordered publicly funded counsel when a decision on whether or not to accept an offer of EJS remains outstanding.

Prosecutors should remind the youth justice court of the following factors that should be considered when an application is made for court ordered publicly funded counsel:

  • The financial circumstances of the young person and their parents or guardians and
  • Whether the Prosecutor is seeking a custodial disposition if the young person is found guilty of the offences before the court.

Prosecutors should ensure that issues relating to the appointment of counsel are resolved quickly.

Mental health concerns

Where Prosecutors have concerns about the mental health needs of a young person, they should refer the young person to the local Youth Mental Health Court Worker or some other similar service at the earliest opportunity. These workers provide specialized support to young persons and their families and will assist them in connecting to community-based mental health resources and services.

Prosecutors should also consider whether a court-ordered mental health assessment is appropriate and request it without delay. These assessments are prepared by qualified medical professionals and provide the youth justice court with a comprehensive assessment of mental health needs that may be relevant to the young person’s offending behaviour. They assist Prosecutors and the youth justice court to identify the most appropriate resources available to foster the young person’s rehabilitation and reintegration into society.

Accessing youth records

Youth records are protected by the privacy regime set out in Part VI of the YCJA. That regime establishes basic rules for protecting the identity of young persons, has prohibitions for the disclosure of records except as authorized by the YCJA. It also establishes timelines within which youth records may be accessed. Youth records may be disclosed only in accordance with these timeline provisions, to persons authorized by the YCJA.

Where the access period has expired, a formal application shall be brought before a youth justice court judge to access the records.

If within the access period a party requests youth records in the possession of the Prosecutor, the Prosecutor must determine if the records could be released if redacted. In determining whether to provide the documents requested the Prosecutor must also have regard to the following factors:

  1. if the requester is lawfully entitled to access under the YCJA
  2. the purpose for which the records are being requested
  3. whether the records relate to an ongoing prosecution or a completed prosecution
  4. whether disclosure of the records might adversely affect the ability of the Crown’s office to continue an ongoing or pending prosecution
  5. whether the records are necessary to make full answer and defence
  6. the privacy interests of the affected parties contained in the records
  7. safety concerns for any persons named in the records and
  8. the nature of the offences to which the records relate.

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