Young persons in pre-trial detention: open vs secure custody
- Kate Mitchell
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Youth in custody are covered by a different framework than adults incarcerated in provincial and federal institutions.
Unlike adults, youth in pre-trial detention can be detained in open custody or secure custody.
Secure custody resembles a jail or prison (physical barriers, close staff supervision, etc.), whereas open temporary detention has fewer restrictions.
Young persons are to be detained in a place of open temporary detention, unless a provincial director decides it’s necessary to place the young person in secure temporary custody because:
- The young person is charged with an offence an adult would be liable to imprisonment for 5+ years (and the young person caused or attempted to cause bodily harm, has failed to appear in court/escaped/attempted to escape, or has been convicted in the last 12 months of an offence for which an adult would be liable to imprisonment of 5+ years);
- The young person has left or attempted to leave while in temporary detention or is charged with having escaped or attempted to escape from lawful custody or being unlawfully at large; or
- In all the circumstances, secure custody is necessary to ensure the young person attends court, for the protection and safety of the public, or for the safety or security of the place of temporary detention.
A young person who has been detained under the Youth Criminal Justice Act can be placed in secure custody for up to 24 hours while the provincial director decides whether to place the young person in open or secure custody.
Like adults, young persons are also entitled to a detention reviews every 90 days. Unlike adults, young persons are entitled to a review every 30 days if they are being detained for an offence being prosecuted summarily.
Young persons detained in secure temporary detention who are brought before a youth justice court for a review of an order for detention can request the court also review the level of their detention. A youth justice court can direct the young person be transferred to a place of open temporary detention.
Young persons can apply to the Custody Review Board for a review of the place the young person is being held or has been transferred to, a denial of reintegration leave, or a transfer to secure custody. The application needs to be made within 30 days of the decision, placement, or transfer.
A youth in pre-trial detention who turn 18 years old can be detained in a provincial jail for adults, if a court considers it to be in the best interests of the young person or public. Once a young person turns 20 years old though, they will be transferred to a provincial jail for adults.