When a young person is charged with any offence they can be released by police with a condition to attend court, or with additional conditions. The police can also detain the young person and bring them to court. If they are detained, the youth justice court will determine at a bail hearing if they can be released and on what conditions. The Criminal Code and the YCJA set out the bail process for young persons. (Criminal Code, Part XVI; YCJA, ss 28-31)
Recent Supreme Court of Canada cases (R. v. Zora, 2020 SCC 14 and R. v Antic, 2017 SCC 27) and legislative amendments to the Criminal Code have emphasized the principle of restraint in setting bail conditions. Section 493.1 of the Criminal Code requires a police officer or youth justice court to give primary consideration to imposing the least onerous conditions that are appropriate in the circumstances. For conditions to be “least onerous”, it’s important that they be reasonably practicable for a young person to comply with.
Section 493.2 of the Criminal Code of Canada requires the youth justice court to give particular attention to circumstances of accused persons who belong to a vulnerable population that is over-represented in the criminal justice system.
It is important that bail conditions that monitor the young person’s actions are not too difficult for the young person to comply with. A lawyer advocating for the young person with FASD should assist the youth justice court in crafting realistic conditions to reflect the circumstances of the young person they represent.
All terms and conditions of bail should be linked to the crime. It’s important to know that the more terms and conditions attached to bail, means the more likely it is that the young person will be charged with breaching those terms.
The use of custody while waiting for trial should be a measure of last resort. Custody cannot be used as a substitute for mental health, child welfare, or social needs. (YCJA, s. 28.1)
For a young person with FASD it is critical to remember that more bail terms = higher likelihood of failing to attend court and failing to comply with bail.