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Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4

905-273-3322

biss@lawyers.ca

Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

​© Copyright 2018 Stephen R. Biss, Barrister & Solicitor

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What is a "bail hearing" in Youth Court?

Stephen R. Biss, Barrister & Solicitor writes about what happens at a bail hearing in Youth Court in Canada.

A bail hearing is a very important Court proceeding for a young person. Both parents need to be in attendance if at all possible. Both parents need to be actively involved in the release process whether they are exasperated by the young person's behaviour or not. If you absolutely cannot take your child home you need to come to Youth Court and explain why. If you cannot bring the child home you need to help those of us in the Court system find a grandparent, aunt, uncle, brother, sister, or friend of the family who can provide a residence and supervision. The proposed surety is preferably someone who owns real estate, has a good job, a good reputation in the community, and no criminal record. Plans by young persons respecting bail almost always include a residence where the young person can be well-supervised.

 

WARNING: If prior to a bail hearing the potential surety meets with a young person to discuss the surety's conditions for release (there is nothing wrong with the potential surety meeting the young person at the jail during visiting hours), DO NOT conduct an interrogation of the young person about details of the offence. You DO NOT want to hear about the details of the offence. There is a real danger that the proposed surety will be asked on the bail hearing witness stand in Youth Court to reveal what admissions the young person has made to the surety about commission of the alleged offence, thus violating the right of the young person not to self-incriminate. During a meeting at the jail avoid direct discussion of the events of the offence - leave that for the lawyer. 

 

A young person and his or her proposed surety need to have a clear understanding in advance of the bail hearing that breach of bail conditions or alleged further criminal activity will result in immediate surrender by the surety of the young person to the police. The surety should set reasonable conditions on the young person in addition to what the bail Court orderts. Breach of those conditions should result in termination of the surety by the attendance of the surety at the police or Justice of the Peace intake office. Sureties do not need to give reasons wht they are surrendering the accused young person back into custody.

 

Minor difficulties between a surety and a young person can be sorted out by consultation with the young person's lawyer. 

 

How to Be a Surety

 

Excerpt from YCJA:

 

Application of Part XVI of Criminal Code

 Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.

Marginal note:Detention as social measure prohibited
  •  (1) 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.

  • Marginal note:Justification for detention in custody

    (2) A youth justice court judge or a justice may order that a young person be detained in custody only if

    • (a) the young person has been charged with

      • (i) a serious offence, or

      • (ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt;

    • (b) the judge or justice is satisfied, on a balance of probabilities,

      • (i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,

      • (ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or

      • (iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in section 3 and to all the circumstances, including

        • (A) the apparent strength of the prosecution’s case,

        • (B) the gravity of the offence,

        • (C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

        • (D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and

    • (c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),

      • (i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,

      • (ii) offer adequate protection to the public from the risk that the young person might otherwise present, or

      • (iii) maintain confidence in the administration of justice.

  • Marginal note:Onus

    (3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.

 

  • 2002, c. 1, s. 29;

  •  2012, c. 1, s. 169.

 

 

 

Excerpt from Criminal Code:

 

Judicial Interim Release

Marginal note:Order of release
  •  (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

  • Marginal note:Release on undertaking with conditions, etc.

    (2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

    • (a) on his giving an undertaking with such conditions as the justice directs;

    • (b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

    • (c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;

    • (d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or

    • (e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

  • Marginal note:Power of justice to name sureties in order

    (2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.

  • Marginal note:Alternative to physical presence

    (2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.

  • Marginal note:Where consent required

    (2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication.

  • Marginal note:Idem

    (3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.

  • Marginal note:Conditions authorized

    (4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order:

    • (a) report at times to be stated in the order to a peace officer or other person designated in the order;

    • (b) remain within a territorial jurisdiction specified in the order;

    • (c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;

    • (d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;

    • (e) where the accused is the holder of a passport, deposit his passport as specified in the order;

    • (e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and

    • (f) comply with such other reasonable conditions specified in the order as the justice considers desirable.

  • Marginal note:Condition prohibiting possession of firearms, etc.

    (4.1) When making an order under subsection (2), in the case of an accused who is charged with

    • (a) an offence in the commission of which violence against a person was used, threatened or attempted,

    • (a.1) a terrorism offence,

    • (b) an offence under section 264 (criminal harassment),

    • (b.1) an offence under section 423.1 (intimidation of a justice system participant),

    • (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act,

    • (d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or

    • (e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to on offence under subsection 20(1) of that Act,

    the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person.

  • Marginal note:Surrender, etc.

    (4.11) Where the justice adds a condition described in subsection (4.1) to an order made under subsection (2), the justice shall specify in the order the manner and method by which

    • (a) the things referred to in subsection (4.1) that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and

    • (b) the authorizations, licences and registration certificates held by the person shall be surrendered.

  • Marginal note:Reasons

    (4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition.

  • Marginal note:Additional conditions

    (4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order

    • (a) that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order; or

    • (b) that the accused comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of those persons.

  • Marginal note:Offences

    (4.3) The offences for the purposes of subsection (4.2) are

    • (a) a terrorism offence;

    • (b) an offence described in section 264 or 423.1;

    • (c) an offence in the commission of which violence against a person was used, threatened or attempted; and

    • (d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act.

  • Marginal note:Detention in custody

    (5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.

  • Marginal note:Order of detention

    (6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

    • (a) with an indictable offence, other than an offence listed in section 469,

      • (i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,

      • (ii) that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,

      • (iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,

      • (iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,

      • (v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to on offence referred to in subparagraph (iv),

      • (vi) that is an offence under section 99, 100 or 103,

      • (vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or

      • (viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);

    • (b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,

    • (c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or

    • (d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

  • Marginal note:Reasons

    (6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice’s reasons for making the order.

  • Marginal note:Order of release

    (7) Where an accused to whom paragraph 6(a), (c) or (d) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions described in subsections (4) to (4.2) or, where the accused was at large on an undertaking or recognizance with conditions, the additional conditions described in subsections (4) to (4.2), that the justice considers desirable, unless the accused, having been given a reasonable opportunity to do so, shows cause why the conditions or additional conditions should not be imposed.

  • Marginal note:Idem

    (8) Where an accused to whom paragraph (6)(b) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions, described in subsections (4) to (4.2), that the justice considers desirable.

  • Marginal note:Sufficiency of record

    (9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries.

  • Marginal note:Written reasons

    (9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

  • Marginal note:Justification for detention in custody

    (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

    • (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

    • (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

    • (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

      • (i) the apparent strength of the prosecution’s case,

      • (ii) the gravity of the offence,

      • (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

      • (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

  • Marginal note:Detention in custody for offence listed in section 469

    (11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.

  • Marginal note:Order re no communication

    (12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.

 

  • R.S., 1985, c. C-46, s. 515;

  •  R.S., 1985, c. 27 (1st Supp.), ss. 83, 186;

  •  1991, c. 40, s. 31;

  •  1993, c. 45, s. 8;

  •  1994, c. 44, s. 44;

  •  1995, c. 39, s. 153;

  •  1996, c. 19, ss. 71, 93.3;

  •  1997, c. 18, s. 59, c. 23, s. 16;

  •  1999, c. 5, s. 21, c. 25, s. 8(Preamble);

  •  2001, c. 32, s. 37, c. 41, ss. 19, 133;

  •  2008, c. 6, s. 37;

  •  2009, c. 22, s. 17, c. 29, s. 2;

  •  2010, c. 20, s. 1;

  •  2012, c. 1, s. 32.