R. v. R.D., 2010 ONCA 899 contains a detailed analysis of Section 31 of the Youth Criminal Justice Act. The section, which has received limited judicial consideration, makes release of young people pending criminal trial more likely. The Court holds:
The Section 31 Issue
Introduction
[25] Section 31 of the Youth Criminal Justice Act deals with the placement of young persons, who would otherwise be detained in custody, in the care of a responsible person. The provision is unique to the treatment of young persons and implements some of the principles set out in s. 3 of the Act, including: s. 3(1)(a)(i), addressing the circumstances underlying a young person’s offending behaviour; s. 3(1)(a)(ii), the emphasis on rehabilitation and reintegration; s. 3(1)(b)(i), a separate system for young persons that emphasizes rehabilitation and reintegration; s. 3(1)(b)(ii), recognition of the greater dependency of young persons and their reduced level of maturity; and s. 3(1)(b)(iii), enhanced procedural protections to ensure fair treatment. Section 31 is not, however, unique to the treatment of young persons alleged to have committed criminal offences. A similarly worded provision was added to the former Young Offenders Act in 1986 as s. 7.1.
[26] I have set out s. 31 in full in Appendix “A” to these reasons. The basic scheme of the legislation can be summarized as follows. A young person may be placed in the care of a responsible person instead of being detained in custody if the young person would, but for this provision, be detained in custody under s. 515 of the Criminal Code; the responsible person is willing and able to take care of and exercise control over the young person; and the young person is willing to be placed into the care of the responsible person. Both the responsible person and the young person must sign undertakings. The responsible person undertakes to take care of, and be responsible for, the young person attending court and complying with other conditions specified by the judge. The young person undertakes to comply with the arrangement and with any other conditions specified by the judge. Importantly, in situations like this, where the young person would, in the absence of a responsible person, be detained in custody, the judge is required to inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person’s care. Finally, wilful breach of the undertaking by either the responsible person or the young person is an offence under s. 139 of the Act and punishable by up to two years imprisonment.
The Legislative History Argument
[27] This case concerns the interplay between s. 31 of the Act and the grounds for detention set out in s. 515(10) of the Criminal Code. Particularly, it concerns the so-called tertiary ground: detention to maintain confidence in the administration of justice. Crown counsel submits on this application that Parliament could not have had the tertiary ground in mind when it first enacted s. 7.1, the predecessor to s. 31, as part of the Young Offenders Act, since the tertiary ground was not added to the Criminal Code until after the Young Offenders Act was already in force.
[28] In my view, the legislative history does not support this submission. When s. 7.1 was added to the Young Offenders Act, s. 515(10)(b) of the Criminal Code allowed for detention of an accused “on the secondary ground … that his detention is necessary in the public interest or for the protection or safety of the public” (emphasis added). In R. v. Morales, [1992] 3 S.C.R. 711, the Supreme Court struck down the “public interest” ground for detention because it authorized detention in terms that were too vague and imprecise as to meet the constitutional standard for bail as set out in s. 11(e) of the Canadian Charter of Rights and Freedoms. Section 515(10) was re-enacted in an attempt to comply with R. v. Morales by adding the predecessor to subparagraph (10)(c):
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment [Emphasis added.]
[29] In R. v. Hall, [2002] 3 S.C.R. 309, the court upheld what is now referred to as the tertiary ground, except that it held that the phrase “on any other just cause being shown and, without limiting the generality of the foregoing” violated ss. 7 and 11(e) of the Charter. The present version of s. 515(10)(c) is similar in most respects to the provision considered in Hall, except for the removal of that phrase.1]
[30] As this legislative history shows, some type of public interest ground—beyond detention to ensure attendance at court or to protect the public—has always been part of the modern bail regime. See, for example, the cases referred to by Lamer C.J. in R. v. Morales at pp. 730-31, some of which defined “public interest” in terms not unlike the current s. 515(10)(c) as the need to maintain public confidence in the administration of justice, in particular, R. v. Dakin, [1989] O.J. No. 1348 (C.A.). See also the discussion in Trotter, The Law of Bail in Canada, 3rd ed. (
[31] The legislative history reveals two further important facts. First, s. 7.1 of the Young Offenders Act provided less direction than does s. 31 of the Act. Section 7.1 merely provided that a young person “may” be placed in the care of a responsible person. Section 31, on the other hand, provides that the judge “shall inquire” as to the availability of a responsible person, if in the absence of a responsible person, the young person would be detained in custody. Second, under s. 7.2 of the Young Offenders Act, a person who wilfully failed to comply with an undertaking under s. 7.1. was guilty of a summary conviction offence and liable to a maximum penalty of six months imprisonment. Under s. 139 of the Act, a person who wilfully fails to comply with an undertaking given under s. 31 is guilty of a hybrid offence, which, if prosecuted by indictment, carries a maximum penalty of two years’ imprisonment.
[32] These changes were intended to enhance use of the responsible person option and thereby reduce resort to pre-trial detention for accused youth. In the YCJA Explained, under the explanatory text dealing with the “Care of a Responsible Person” the federal government explained the reason for the changes as follows:
Under subsection 31(2), a new provision created in the YCJA, the court must inquire whether a responsible person is available and the young person is willing to be placed. Experience under the YOA indicates that the responsible person provision is not used very often. For example, in a study of 118 bail hearings, the possibility of a using a responsible person as an alternative to detention was not even raised. Requiring the court to inquire as to whether a responsible person is available will ensure that the possibility of this alternative to detention is brought to the attention of the defence counsel, the young person, the parents, and the prosecutor. This requirement also highlights a major objective of the YCJA — the reduction in the incarceration of youth by using less restrictive alternatives. [Footnotes omitted, emphasis added.]
[33] The study referred to in this excerpt is by Kimberley N. Varma: “Exploring ‘youth’ in court: An Analysis of decision-making in youth court bail hearings” (2002), 44
[34] Finally, it would be ironic if s. 31 were unavailable in the very types of cases where pre-trial custody could have the greatest negative impact on the young person. The tertiary ground will be invoked most often in murder cases and other very serious cases. Those cases tend to take much longer to come to trial, meaning that the young person may be in custody, away from parental and other family support, for years during a critical time in their development. To fail to recognize the applicability of s. 31 in such cases would undermine the principles of reintegration and the need to recognize the greater dependency and reduced level of maturity of young persons.
The Abrogation Argument
[35] Apart from the legislative history argument, it was Crown counsel’s submission on the interplay between s. 515(10)(c) of the Criminal Code and s. 31 of the Act, that the latter is directed solely to considerations involving the primary and secondary grounds. In effect, Parliament had in mind cases where a young person would otherwise be detained for want of a suitable surety to ensure attendance at court or to prevent commission of further offences. Thus, the purpose of s. 31 was to provide an alternative regime, the written undertaking of a responsible person, where a surety was not available. The monetary pull of a surety bail as contemplated by s. 515(2)(c) and s. 771 of the Criminal Code is replaced by the criminal sanction under s. 139(1) of the Act, which makes it an offence to wilfully fail to comply with an undertaking entered into under s. 31. Crown counsel submits that recognizing a role for s. 31 in tertiary ground cases would “have the effect of abrogating the tertiary ground with respect to young persons” and that s. 31 would “do nothing to assuage the concerns addressed by the tertiary ground”.
[36] I do not accept these submissions. Section 31 requires that the judge consider whether the young person should be released into the care of a responsible person; the section does not require a release to a responsible person in every case and there will be cases where public confidence will not be satisfied by such an order. As Kennedy J. said in R v. N.W.(2008), 279 Nfld. & P.E.I.R. 131 (
[37] I do agree with Crown counsel that the s. 31 responsible person regime resembles the surety regime and in many respects is directed to the same considerations, that is, to ensure the accused’s good conduct and that the accused attends court as required. Thus, it may be that resort will be had to s. 31 more often where the reason for the detention would concern the primary or secondary ground. In this respect, see R. v. J.W. (unreported Ont. S.C.J. released May 7, 2010).
[38] In my view, however, s. 31 is not wholly spent by primary and secondary ground considerations. I say that because, as Trotter J. points out at s. 6.4, an order under s. 31 is “analternative to custody” and while the responsible person regime “closely resembles the traditional surety relationship … s. 31 contemplates a closer level of supervision than is expected of [a] surety”. As he says, the responsible person is expected to “take care of” the young person. Similarly, the authors of Youth Criminal Justice Act Manual point out, atpara. 31:00000, that “[t]he statutory requirements imposed upon a responsible person are considerably greater than the obligations imposed upon a surety”: Peter J. Harris & Miriam H. Bloomenfeld, Youth Criminal Justice Act Manual, loose-leaf (
[39] In my view, the closer level of supervision contemplated under s. 31, together with the penal sanction for both the young person and the responsible person, may in some circumstances meet the public confidence concerns of the tertiary ground. At paras. 26 and 31 of R. v. Hall, McLachlin C.J. explained the purpose of the tertiary ground:
Therefore, Parliament provided for denial of bail where paras. (a) and (b) of s. 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is "just cause" for refusing bail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public's confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter. When the public's confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge.
…
It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public's confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. [Emphasis added.]
[40] In an appropriate case, a judge considering the case of a young person charged with a very serious offence may find that public confidence in the bail system, and the justice system generally, can be maintained through the rigorous and strict regime that is possible under s. 31. While “release into the community” of an adult alleged to have committed the heinous crime referred to in Hall may not maintain confidence in the bail and justice systems, release of a young person to the close care of a responsible person may not undermine public confidence. In other words, as a result of s. 31, the judge is not faced with a simple binary choice of detention or release into the community. Section 31 gives a further option that may in some respects resemble a form of detention by imposing strict conditions both on the young person and the responsible person. Those conditions could include a form of house arrest and other stringent conditions that keep the young person out of detention but under the close supervision and care of a responsible person who faces penal sanctions for failing to live up to the solemn responsibilities imposed by the undertaking.
[41] Section 31 contributes to achieving the broader purpose of the Act, referred to earlier, to reduce reliance on incarceration for young persons at all stages of proceedings and to give the youth court alternatives to imprisonment. In that respect, I agree with the comments of De Filippis J. in R. v. A.(S.), 2004 ONCJ 184, at para. 10 as to the purpose of s. 31:
Parliament has directed judges not to incarcerate young people pending trial unless it is absolutely necessary or to put it another way, unless there is no other alternative available to the court and that, in my opinion simply mirrors Parliament's direction in the Youth Criminal Justice Act as to what should be done with young people who are found guilty after trial. Those provisions are also loud and clear and they direct judges to incarcerate young persons only as a last resort, subject to obvious exceptions.
[42] To a similar effect are the comments of Pickup J. in R v. R.N.C. (2007), N.S.R. (2d) 200 (S.C.) at para. 46, that s. 31(1) is obviously an illustration of the general principle in the Act that “incarceration should be a last resort”. See also R. v. J.D., 2005 ONCJ 49, at para. 57.
[43] Finally, Crown counsel’s submission is inconsistent with the important direction in s. 3(2) of the Act, that the Act be liberally construed to ensure that young persons are dealt with in accordance with the principles in s. 3(1).
[44] There has been little judicial treatment of the relationship of s. 31 and the tertiary ground. One of the most helpful decisions is by Huddart J.A. considering the predecessor provision, s. 7.1 of the Young Offenders Act, in R. v. K.M.E. (1998), 105 B.C.A.C. 151. She held that an order could be made under s. 7.1 even where the young person would otherwise be detained on the tertiary ground. Huddart J.A. was dealing with a notorious murder allegedly committed by a group of young people (see R. v. Ellard, [2009] 2 S.C.R. 19). The young person was, however, only 15 years of age and had no prior criminal record. Huddart J.A. reasoned as follows at paras. 16 and 19 in considering the interplay between s. 7.1 and public confidence in the bail system:
As is apparent from the portion of the Youth Court judge's reasons I quoted earlier, the Youth Court judge appears to have considered placement with parents as a "form of release" that would erode "the respect and confidence of the public" for the court system. On the basis of the evidence before this court, I do not agree with that assessment. I consider that a well-informed member of the public would not be troubled by a decision to place a 15-year old girl with her parents pending trial, even one for murder. The public perception of the crime is a factor to be considered if confidence in the administration of criminal justice is to be maintained, but so is the public perception of the alleged offender, who is presumed innocent, and so are the principles Parliament requires to be considered in the interpretation and application of the Young Offenders Act. The ability of a young person's family to supervise the young person must be considered before detention in custody is ordered.
…
It is to be recalled that s. 7.1 comes into play only upon a finding that a detention order is justified. If the public interest does not demand that a young person be detained, a court might well release that young person on the condition that she live with her parents, but it would not be required to make an order under s. 7.1 and formal undertakings would not be required of the parents. [Emphasis added.]
[45] In the end, Huddart J.A. ordered the young person’s release under the control of her father with both her father and mother to act as sureties. I agree with the comments ofHuddart J.A. Section 31, in my view, is available even if the young person would otherwise be detained on the tertiary ground.
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