Exploring `Youth' in Court: An Analysis of Decision-Making in Youth Court Bail Hearings
Varma, Kimberly N., Canadian Journal of Criminology
There is a noticeable lack of research in the area of pretrial detention for youth in Canada. This is surprising in view of statistics, which suggest a steady and substantial increase in the use of detention before trial in Canadian youth courts since 1988 (Moyer 1996; Federal-Provincial-Territorial Task Force Report 1996; Kenewell, Bala, and Colfer 1991). In a manner that is similar to our use of custody for young offenders in Canada, we place large numbers of young people in detention. The most recent statistics from 1998-99 show that, on average across the provinces in Canada, approximately three out of every five young persons held in custody on any given day were not serving a court-imposed sentence (Canadian Centre for Justice Statistics 2000) (2) Only 5 years ago, in 1993-94, only one out of every five youths in custody were being held in some form of detention (Moyer 1996).
Furthermore, there is substantial variation in the use of pretrial detention among provinces in Canada, suggesting disparity in the way decisions are being made. Alberta and Manitoba's pretrial detention rates are more than double the rate in British Columbia (Federal-Provincial-Territorial Task Force Report 1996). Across Canada, as a proportion of the youth population, detention is used more frequently in Ontario, Manitoba, Alberta and the two territories (Moyer 1996). Thus, with the anticipated new youth justice legislation (Youth Criminal Justice Act) likely being proclaimed into law in 2002, it is important to examine carefully how we are currently dealing with youth facing detention before trial.
Among the countless decisions made every day in the youth justice system, the decision to detain a young person alleged to have committed an offence is perhaps one of the most complex and potentially controversial. Pretrial detention decisions occur at a stage in the process where the individual before the court is legally innocent. Therefore, decision makers must carefully balance the potential flight risk of the accused, the protection of the public, and the right of the youth not to be arbitrarily detained. This decision is critical for at least two important reasons. First, the potentially harmful consequences for persons held in pre-trial detention have been well documented. Studies have concluded that accused persons stand a greater chance of being convicted and receiving a harsher sentence if they are detained before their trial (Friedland 1965; Koza and Doob 1975; Goldkamp 1983; McCarthy 1987; Fagan and Guggenheim 1996; and in relation to youth; Federal-Provincial-Territorial Task Force Report 1996; Varma 2000). Second, it is also important to remind ourselves about the unique position of young people before the courts. Youth in conflict with the law are said to have special protections due to their state of maturity and dependency in wider society. Unlike adults, youth are dependent upon others (usually a responsible adult) to ensure that they will attend their trial and not commit further offences if released (Bookin-Weiner 1984).
Section 3(c) the Young Offenders Act (YOA) states "young persons who commit offences require supervision, discipline and control but because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance." Based on this principle, one would expect that decisions made in youth court cases would relate to factors such as the offender's age, maturity, and stage of development. There is evidence that, to some extent, this should be the case. Research in developmental psychology has demonstrated differences between `younger' and `older' adolescents. Younger youth are at a significant disadvantage in their understanding of the youth justice process, their ability to participate in criminal justice proceedings, their understanding of basic legal rights, and in terms of their general knowledge of the YOA (Scott and Grisso 1998; Abramovitch, Higgins-Biss, and Biss 1993; Peterson-Badali and Koegl 1999). …