When a young person is arrested and a case does not resolve immediately, one of the first questions is whether they will be released or held in custody until the matter is dealt with. The Youth Criminal Justice Act (YCJA) generally takes a more restrictive approach to pretrial detention than the adult system, and it includes its own release mechanism, generally called a "responsible person," that operates somewhat differently from an adult surety. This page provides a general overview. It is general information only and does not replace advice from a lawyer about a specific case.
The YCJA's General Approach to Detention
The YCJA generally restricts the use of custody, including pretrial detention, for young people. It generally reflects the view that detention before a case is resolved should be a last resort, not a default, and it generally prohibits using pretrial detention as a substitute for appropriate child welfare, mental health, or other social measures that a young person might actually need. In general terms, the Crown generally bears the burden of showing that detention is necessary and that no less restrictive condition of release, including release to a responsible person, would adequately manage any risk.
When Pretrial Detention May Still Be Considered
Despite this general restriction, detention before trial can still be considered in specific circumstances defined by the YCJA, generally including concerns about a young person failing to attend court, the protection or safety of the public, including any victim or witness, or, in some circumstances, other specific criteria set out in the Act. Even where one of these concerns exists, the court is generally required to consider whether a less restrictive alternative, such as release to a responsible person with conditions, could adequately address it before resorting to detention.
The "Responsible Person" Concept
A distinctive feature of the YCJA bail process is the "responsible person" concept. When detention is being considered, the court is generally required to inquire into whether a responsible person is available who is willing to take on formal responsibility for supervising the young person in the community in place of detention. A responsible person, often a parent, guardian, or another adult with a meaningful relationship to the young person, generally must agree to the arrangement and formally undertake in writing to care for and supervise the young person, help ensure the young person attends court as required, and help ensure compliance with any other conditions the court imposes.
Both the young person and the proposed responsible person generally need to agree to the arrangement, and the court needs to be satisfied it is appropriate given the circumstances. Because the role often falls to a parent, see parents and guardians for more on what this practically involves.
How This Differs From an Adult Surety
The responsible person concept is often compared to an adult surety, but the two are generally structured differently. In the adult system, a surety generally pledges a specific sum of money to the court, which can be forfeited if the accused breaches their conditions. A responsible person under the YCJA, by contrast, generally does not pledge money to the court. Instead, they generally take on a formal, hands-on supervisory responsibility for the young person, and can generally face consequences of their own, including potentially being charged, if they fail to meet the supervisory obligations they agreed to. See bail and release in the adult system for a broader comparison of how adult release conditions generally work.
Because a responsible person takes on real, ongoing obligations, it is worth discussing the role honestly with a lawyer before agreeing to it, including what kind of supervision will realistically be expected day to day.
Conditions of Release
Whether a young person is released outright, released to a responsible person, or released with other conditions, the specific conditions imposed generally need to be reasonable and connected to the concerns the court identified, such as a curfew, a requirement to attend school, restrictions on contact with a complainant or witness, or reporting requirements. Conditions that are broader than necessary can generally be challenged, and a lawyer can advise on whether specific proposed conditions are appropriate for a young person's circumstances.
If Conditions Are Breached
If a young person does not comply with the conditions of their release, this can generally lead to further involvement with police and the possibility of being brought back before the court, and it can generally affect how future release decisions are viewed. A responsible person who becomes aware that a young person is not complying is generally expected to take reasonable steps in response, consistent with the undertaking they signed. Discussing any concerns about compliance with the young person's lawyer promptly is generally the best way to address problems before they escalate.
What a Youth Release Hearing Looks Like
A hearing about whether a young person will be released generally takes place in youth court and follows YCJA procedures rather than the ordinary adult bail process, though it shares the same basic goal of deciding whether release is appropriate pending the resolution of the case. See how youth court works for more general detail on how youth court proceedings differ from the adult process.
The Role of a Lawyer
A lawyer plays an important role at this stage, generally by identifying whether a responsible person is realistically available, proposing appropriate release conditions, and, where necessary, arguing against detention or against conditions that are broader than needed. Because pretrial detention can have real consequences for a young person's school attendance, family relationships, and overall wellbeing, getting a lawyer involved as early as possible generally matters a great deal at this stage.
Frequently Asked Questions
Is it harder to detain a young person before trial than an adult?
Generally, yes. The YCJA generally restricts the use of pretrial detention for young people more than the adult bail system restricts it for adults.
What is a "responsible person" under the YCJA?
A responsible person is someone, often a parent or guardian, who formally agrees to supervise a young person in the community as an alternative to detention, without pledging money the way an adult surety does.
Can any adult be a responsible person?
The court generally needs to be satisfied that the proposed person and arrangement are appropriate given the young person's circumstances. A lawyer can advise on who is likely to be accepted.
What happens if a responsible person cannot properly supervise the young person?
This can generally lead to consequences for the responsible person, including potentially being charged, since they have taken on a formal, written supervisory commitment to the court.
Can a young person be detained just because there is no responsible person available?
The absence of a responsible person is generally one factor a court considers, not automatically determinative on its own; the overall test still generally focuses on whether detention is actually necessary.
What if a young person breaches their release conditions?
This can generally lead to further legal consequences and can generally affect future release decisions. Speak with the young person's lawyer as soon as any compliance issue arises.
Does the youth bail process happen in the same courtroom as adult bail?
No. Youth release hearings are generally held in youth court under YCJA procedures rather than the ordinary adult bail process.