Home Law International Handbook of Juvenile Justice
INCARCERATION OF YOUTH: CUSTODY AND REMAND DETENTION
While the YCJA emphasizes community-based responses for the majority of youth who commit less serious offenses, violent or persistent offenders may receive youth sentences of up to 3 years in custody (and up to 10 years for murder). The most serious adolescent offenders face the possibility of having an adult length of sentence, albeit with earlier parole eligibility than for adults if a life sentence is imposed.
For youths who receive a custody sentence, the court must divide the sentence between a period in custody and a period of community supervision: normally the sentence is two-thirds in custody and one-third under supervision. This is intended to ensure that youths who receive a custody sentence have supervision for their transition back into the community. Further, judges imposing a youth custody sentence must determine whether the sentence will be in a secure custody facility or an open community-based facility like a group home.
As discussed above, the YCJA resulted in a significant decline in the rate of youth custody. However, the coming into force of the YCJA in 2003 did not result in a reduction in the rate of pretrial detention (known as “remand custody”). Crown Prosecutors may seek the detention of youth awaiting trial who have a history of involvement in the justice system or are charged with more serious offenses or who may not attend court. While the YCJA established a presumption against detention if charges did not involve a “custody gateway” situation, the act had little effect on levels pretrial detention. A number of explanations were offered for this difference, and it is likely that there are several factors involved (Canada 2007). One explanation was that the provisions restricting the use of custody were significantly clearer and more detailed and in some situations absolutely precluded the use of custody, while the provisions concerning the use of remand custody gave more discretion to judges. The high rate of pretrial remand custody was concerning for a number of reasons. There are generally less recreational, educational, and rehabilitative programming available for youth on remand. Further, the sudden and unplanned removal of a youth from their communities and families that resulted from remand makes this experience disruptive for youth and possibly increases their likelihood of reoffending by exposing them to negative peer influences. The 2012 amendments provided more specific restrictions against the use of remand custody. The per capita rate of youth in remand detention in Canada changed very little from 1997/1998 to 2005/2006, fluctuating around an average of 40 per 100,000 youth population, but has notably declined since the 2012 reforms came into effect (Fig. 5.6). Since 2007/2008, the rate of youth in detention has decreased by approximately one- third, reaching 31 per 100,000 in 2013/2014.
The youth incarceration rate is the sum of the rates of youth in sentenced custody and in detention. As Fig. 5.6 shows, the trend in the incarceration rate in Canada followed the decline in the rate of sentenced custody. From a high of 224 in 1997/1998, the incarceration rate fell by an average of 6 % until 2002/2003 and then by 35 %> in 2003/2004, the year that the YCJA came into force. It then fell by an average of 4 %> until 2012/2013, with a pronounced drop of 14 %> in 2013/2014. The youth incarceration rate in 2013/2014 was 61 per 100,000, which is 27 % of the rate (224) in 1997/1998.
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