Application for Continuation of Custody
| This page was last substantively updated or reviewed January 2020. (Rev. # 99331) |
General Principles
- Application for continuation of custody
98 (1) Within a reasonable time before the expiry of the custodial portion of a young person’s youth sentence, the Attorney General or the provincial director may apply to the youth justice court for an order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.
- Continuation of custody
(2) If the hearing for an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.
- Decision
(3) The youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard, order that a young person remain in custody for a period not exceeding the remainder of the youth sentence, if it is satisfied that there are reasonable grounds to believe that
- (a) the young person is likely to commit a serious violent offence before the expiry of the youth sentence he or she is then serving; and
- (b) the conditions that would be imposed on the young person if he or she were to serve a portion of the youth sentence in the community would not be adequate to prevent the commission of the offence.
- Factors
(4) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including
- (a) evidence of a pattern of persistent violent behaviour and, in particular,
- (i) the number of offences committed by the young person that caused physical or psychological harm to any other person,
- (ii) the young person’s difficulties in controlling violent impulses to the point of endangering the safety of any other person,
- (iii) the use of weapons in the commission of any offence,
- (iv) explicit threats of violence,
- (v) behaviour of a brutal nature associated with the commission of any offence, and
- (vi) a substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person’s behaviour;
- (b) psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;
- (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;
- (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving;
- (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving a portion of the youth sentence in the community under supervision; and
- (f) evidence of a pattern of committing violent offences while he or she was serving a portion of a youth sentence in the community under supervision.
- Report
99 (1) For the purpose of determining an application under section 98 (application for continuation of custody), the youth justice court shall require the provincial director to cause to be prepared, and to submit to the youth justice court, a report setting out any information of which the provincial director is aware with respect to the factors set out in subsection 98(4) that may be of assistance to the court.
- Written or oral report
(2) A report referred to in subsection (1) shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth justice court, be submitted orally in court.
- Provisions apply
(3) Subsections 40(4) to (10) (procedures respecting pre-sentence reports) apply, with any modifications that the circumstances require, in respect of a report referred to in subsection (1).
- Notice of hearing
(4) When an application is made under section 98 (application for continuation of custody) in respect of a young person, the provincial director shall cause to be given, to the young person and to a parent of the young person, at least five clear days notice of the hearing in writing.
- Statement of right to counsel
(5) Any notice given to a parent under subsection (4) shall include a statement that the young person has the right to be represented by counsel.
- Service of notice
(6) A notice under subsection (4) may be served personally or may be sent by confirmed delivery service.
- When notice not given
(7) When notice under subsection (4) is not given in accordance with this section, the youth justice court may
- (a) adjourn the hearing and order that the notice be given in any manner and to any person that it directs; or
- (b) dispense with the giving of the notice if, in the opinion of the youth justice court, having regard to the circumstances, the giving of the notice may be dispensed with.
- Reasons
100 When a youth justice court makes an order under subsection 98(3) (decision for continued custody), it shall state its reasons for the order in the record of the case and shall provide, or cause to be provided, to the young person in respect of whom the order was made, the counsel and a parent of the young person, the Attorney General and the provincial director
- (a) a copy of the order; and
- (b) on request, a transcript or copy of the reasons for the order.
- Review of youth justice court decision
101 (1) An order made under subsection 98(3) (decision for continued custody) in respect of a young person, or the refusal to make such an order, shall, on application of the young person, the young person’s counsel, the Attorney General or the provincial director made within thirty days after the decision of the youth justice court, be reviewed by the court of appeal, and that court may, in its discretion, confirm or reverse the decision of the youth justice court.
- Extension of time to make application
(2) The court of appeal may, at any time, extend the time within which an application under subsection (1) may be made.
- Notice of application
(3) A person who proposes to apply for a review under subsection (1) shall give notice of the application in the manner and within the period of time that may be directed by rules of court.
- Continuation of custody
104 (1) When a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) [youth sentences – custody and supervision order or IRCS (serious offences)] has been imposed is held in custody and an application is made to the youth justice court by the Attorney General, within a reasonable time before the expiry of the custodial portion of the youth sentence, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court and the youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard and if it is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person before the expiry of the youth sentence the young person is then serving, order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.
- Continuation of custody
(2) If the hearing of an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody until the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.
- Factors
(3) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including
- (a) evidence of a pattern of persistent violent behaviour and, in particular,
- (i) the number of offences committed by the young person that caused physical or psychological harm to any other person,
- (ii) the young person’s difficulties in controlling violent impulses to the point of endangering the safety of any other person,
- (iii) the use of weapons in the commission of any offence,
- (iv) explicit threats of violence,
- (v) behaviour of a brutal nature associated with the commission of any offence, and
- (vi) a substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person’s behaviour;
- (b) psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, an offence causing the death of or serious harm to another person;
- (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, an offence causing the death of or serious harm to another person; and
- (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving.
- Youth justice court to order appearance of young person
(4) If a provincial director fails to cause a young person to be brought before the youth justice court under subsection (1), the youth justice court shall order the provincial director to cause the young person to be brought before the youth justice court without delay.
- Provisions to apply
(5) Sections 99 to 101 apply, with any modifications that the circumstances require, in respect of an order made, or the refusal to make an order, under this section.
- If application denied
(6) If an application under this section is denied, the court may, with the consent of the young person, the Attorney General and the provincial director, proceed as though the young person had been brought before the court as required under subsection 105(1).