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Osgoode Home > Osgoode Digital Commons > Journals > JLSP > Vol. 38 (2026)

 
Journal of Law and Social Policy

Author ORCID Identifier

0000-0002-3928-0527

Publication Date

2026

Document Type

Article

English Abstract

Contemporary societal trends indicate many young adults rely on their families for financial and other support for longer than in the past, often well into their 20s. Youth leaving the child welfare system, however, do not have similar supports to rely on when they reach the age of majority (eighteen in Ontario). In bail court, the experiences of those who have familial support differ markedly from those who do not. Qualitative interviews with youth, lawyers, and social workers illuminate the experiences of young adults (ages eighteen to twenty-four) who have exited the child welfare system and come into conflict with the law. Drawing on Douglas’ cultural theory of risk and Feeley and Simon’s theory of actuarial justice helps make sense of the ways youths’ experiences after leaving the child welfare system are framed as risk factors in bail courts and used to rationalize more restrictive conditions of release for this group, compared to their peers who have not been in care. Attention is paid to factors which render an accused “releasable;” releasability factors, such as community ties and social supports, reveal underlying normative assumptions about kinship networks wherein those lacking these connections, like youth leaving care, are uniquely disadvantaged.

References

1 Melissa Ford Shah et al, “Predicting Homelessness Among Emerging Adults Aging Out of Foster Care” (2017) 60:1–2 Am J Community Psychology 33 at 33; Youngmin Yi & Christopher Wildeman, “Can Foster Care Interventions Diminish Justice System Inequality?” (2018) 28:1 Future Children 37 at 50.

2 Shah et al, supra note 1 at 33.

3 Jeffrey Jensen Arnett, “Emerging Adulthood: A Theory of Development From the Late Teens Through the Twenties” (2000) 55:5 American Psychologist 469 at 469.

4 JoAnn S Lee, Mark E Courtney, & Emiko Tajima, “Extended Foster Care Support During the Transition to Adulthood: Effect on the Risk of Arrest” (2014) 42 Children & Youth Services Review 34 at 35.

5 Marsha Rampersaud & Linda Mussel, “Half the Time I Felt Like Nobody Loved Me:” The Costs of ‘Aging Out’ of State Guardianship in Ontario (Toronto: StepStones for Youth, 2021) [Rampersaud & Mussel, “The Costs of Aging Out”]

6 Marsha Rampersaud, To Protect or To Punish: Illuminating Pathways from Care to Criminalization (PhD Dissertation, Queen’s University, 2021) [unpublished] at 5 [Rampersaud, To Protect or To Punish].

7 Legal adulthood in Canada begins at age eighteen. Yet, the emerging adulthood literature recognizes that young people continue to develop and mature cognitively, emotionally, and socially well into their twenties. Consistent with this literature, I use the terms “youth” and “young people” interchangeably to recognize an upper boundary for this developmental stage in the late twenties. When referring to those aged eighteen plus, the terms “legal adult” and “young adult” are specified. See Jeffrey Jensen Arnett, supra note 3.

8 I use single quotations around “aging out” as informed by social work scholar Melanie Doucet who has lived experience in the child welfare system: “Although ‘aging out’ is a label that is not applied to youth in the general population, it is a term that most people who are/have been in care understand, and is widely used in child welfare reports, peer-reviewed articles and in the media to illustrate this youth-in-care specific phenomenon. We mindfully chose to put ‘aging out’ in single quotations marks … to de-normalize the term, as we advocate for equitable transitions to adulthood for youth in care.” By de-normalizing usage of this term, Doucet actively challenges and rejects the notion that a young person ages out of needing care and support and simultaneously sheds light on the harmful nature of this practice. See Melanie Doucet, Relationships Matter: Examining the Pathways to Long-Term Supportive Relationships for Youth ‘Aging Out’ of Care (PhD Dissertation, McGill University, 2020) [unpublished] at 5.

9 Mary Douglas, Risk and Blame: Essays in Cultural Theory (New York: Routledge, 2003).

10 Actuarial justice is a criminal justice approach that uses statistical tools to assess risk and predict and manage offender behaviours. Such approaches move away from the individual and focus on assessing the riskiness of groups that share similar characteristics.

11 Malcolm M Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications” (1992) 30:4 Criminology 449; Malcolm M Feeley & Jonathan Simon, “Actuarial Justice: The Emerging New Criminal Law” in David Nelken, ed, The Futures of Criminology (Thousand Oaks: Sage, 1994).

12 Samantha Shewchuk, Transition Supports to Prevent Homelessness for Youth Leaving Out-of-Home Care (Toronto: A Way Home Canada, 2020) at 7.

13 In Canada, the state has misused this power to target Indigenous and Black families. The Sixties Scoop, for example, was a state led assimilationist project that saw the forced removal of Indigenous children from their families. These groups are overrepresented in the child protection system. See Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Truth and Reconciliation Commission of Canada, 2015).

14 Rampersaud, To Protect or To Punish, supra note 6 at 126–128.

15 This Ministry administers the child welfare and youth justice systems in Ontario.

16 Melanie Doucet, A Long Road Paved with Solutions: ‘Aging Out’ of Care Reports in Canada: Key Recommendations and Timelines (1987-2020) (National Council of Youth in Care Advocates, 2020), online (pdf): [perma.cc/EDL2-NJZ3]; Jane Kovarikova, Exploring Youth Outcomes After Aging Out of Care (Toronto: Office of the Provincial Child and Youth Advocate, 2017), online (pdf): [perma.cc/9RRY-SQKN]; Rampersaud, To Protect or To Punish, supra note 6; Marsha Rampersaud, “Punitive Justice: When Race and Mental Illness Collide in the Early Stages of the Criminal Justice System,” 33:3 CJLS 387 (2022) [Rampersaud, “Punitive Justice”]; Marsha Rampersaud & Linda Mussell, “COVID-19 Leaves Youth Forced Out of Foster Care Even More Vulnerable” The Conversation (2021), online: [perma.cc/2EZU-RJFD]; Shewchuk, supra note 12.

17 Judy Finlay et al, Cross-Over Youth Project: Navigating Quicksand (Toronto: Ryerson University, 2019), online (pdf): [perma.cc/H8HD-FNZ3].

18 Ibid.

19 Office of the Provincial Health Officer (BC), An Ounce of Prevention Revisited: A Review of Health Promotion and Selected Outcomes for Children and Youth in BC Schools, Provincial Health Officer’s Annual Report 2006 (Victoria, BC: Office of the Provincial Health Officer, BC Ministry of Health, 2008), online (pdf): [perma.cc/C2E3-N5CW].

20 Yi & Wildeman, supra note 1.

21 Ontario Human Rights Commission, Interrupted childhoods: Over-representation of Indigenous and Black Children in Ontario Child Welfare (Toronto: Ontario Human Rights Commission, 2018), online: [perma.cc/NGE4-VSWK].

22 Yi & Wildeman, supra note 1.

23 Statistics Canada, Family Characteristics (22), Aboriginal Identity (9), Registered Treaty Indian Status (3), Age (8A), and Sex (3) for the Population in Private Households of Canada, Provinces and Territories, Census Metropolitan Areas and Census Agglomerations, 2016 Census – 25% Sample Data (Data Tables, 2016 Census), Catalogue No 98-400- X2016162 (Ottawa: Statistics Canada, 2016), online: [perma.cc/B7VY-JLMM].

24 Children’s Aid Foundation of Canada, “Black History Month 2024 Black Excellence: A Heritage to Celebrate; a Future to Build” (1 February 2024), online: [perma.cc/V9P5-45U2].

25 Akwasi Owusu-Bempah & Scot Wortley “Race, Crime, and Criminal Justice in Canada” in Sandra M Bucerius & Michael Tonry, eds, The Oxford Handbook of Ethnicity, Crime, and Immigration (New York: Oxford University Press, 2014); Wendy Chan & Dorothy Chunn, Racialization, Crime, and Criminal Justice in Canada (Toronto: University of Toronto Press, 2014).

26 Issa Kohler-Hausman, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton: Princeton University Press, 2018).

27 Will Dobbie, Jacob Goldin, & Crystal S Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, Working Paper No. 22511 (National Bureau of Economic Research, 2016).

28 Ibid; Gail Kellough & Scot Wortley, “Remand For Bail: Bail Decisions and Plea Bargaining as Commensurate Decisions” (2002) 42 Brit J Crim 186.

29 Criminal Code, RSC 1985, c C-46, s 515(10).

30 Nicole M Myers, “Shifting Risk: Bail and the Use of Sureties” (2009) 21:1 Current Issues in Criminal Justice 127 [Myers, “Shifting Risk”]; Gary Trotter, The Law of Bail in Canada, 3rd ed (Toronto: Creswell, 2010).

31 Except in the case of reverse onus.

32 Cheryl M Webster, Anthony N Doob, & Nicole M Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009) 21:1 Current Issues in Criminal Justice 79.

33 Myers, “Shifting Risk,” supra note 30; Trotter, supra note 30.

34 John Howard Society of Ontario, Reasonable Bail? (Toronto: The Centre of Research, Policy, & Program Development at the John Howard Society of Ontario, 2013), online (pdf): [perma.cc/4H9A-GNG2].

35 Public Safety Canada, Corrections and Conditional Release Statistical Overview (Ottawa: Minister of Public Safety and Emergency Preparedness, 2020), online: [perma.cc/HST7-WLQZ].

36 John Howard Society of Ontario, supra note 34; Webster, Doob, & Myers, supra note 32.

37 Statistics Canada, Correctional Services Program, Trends in the use of remand in Canada, 2004/2005 to 2014/2015, Catalogue No 85-002-X (Juristat) (Ottawa: Statistics Canada, 2017), cited in Jamil Malakieh, Adult and Youth Correctional Statistics in Canada, 2017/2018, Statistics Canada Catalogue No 85-002-X (Ottawa: Statistics Canada, 2019).

38 Statistics Canada, Average Counts of Adults in Provincial and Territorial Correctional Programs (Ottawa: Statistics Canada, 2020) at Table 35-10-0154-01, online: [perma.cc/4H3S-7ZBV].

39 Ibid. 40 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

41 Ontario Court of Justice, “Bail Statistics” (2020), online [https://perma.cc/7PKW-JFHH].

42 Raymond E Wyant, Bail and Remand in Ontario (Toronto: Ontario Ministry of the Attorney General, 2017), online (pdf): [perma.cc/FYR8-DZMZ].

43 R v McDonald, 1998 CanLII 13327 (ONCA) at para 48.

44 R v Wust, 2000 SCC 18 at para 41 [emphasis in original].

45 Nicole M Myers, “Who Said Anything About Justice? Bail Court and the Culture of Adjournment” (2015) 30:1 CJLS 127 [Myers, “Who Said Anything About Justice?”].

46 Ibid.

47 John Howard Society of Ontario, supra note 34; Myers, “Who Said Anything About Justice?,” supra note 45.

48 Myers, “Shifting Risk,” supra note 30.

49 The Supreme Court of Canada responded to growing concerns about inconsistencies between bail outcomes and criminal law in their landmark decision in R v Antic, 2017 SCC 27. In a unanimous ruling, the Court indicated several principles must be adhered to when applying bail provisions in a contested hearing, including a reminder that requiring a surety is one of the most onerous forms of release and should only be imposed if all less onerous forms of release are rejected as inappropriate (at para 67). Antic essentially instructed the lower courts to return to meaningful application of the law as it is written. Yet, the use of restrictive conditions, like sureties, persists in the post-Antic era (see Carolyn Yule & Rachel Schumann, “Negotiating Release? Analysing Decision Making in Bail Court” (2019) 61:3 Can J Corr 45). The Supreme Court responded again in R v Zora, 2020 SCC 14 by re-emphasizing the presumption of release and the ladder principle.

50 Criminal Code, supra note 29, s 515(2)(c); Yule & Schumann, supra note 49.

51 A breach of bail release order may result in an administration of justice (AOJ) charge for failure to comply.

52 Nicole M Myers, “Eroding the Presumption of Innocence: Pre-Trial Detention and the Use of Conditional Release on Bail” (2017) 57:3 Brit J Crim 664.

53 Abigail C Deshman & Nicole M Myers, Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention (Toronto: Canadian Civil Liberties Association and Education Trust, 2014).

54 John Howard Society of Ontario, supra note 34; Myers, “Shifting Risk,” supra note 30; Nicole M Myers, “’Jailers in the Community’: Responsibilizing Private Citizens as Third-Party Police” (2019) 61:1 Can J Corr 66 [Myers, “Jailers in the Community”]; Yule & Schumann, supra note 49.

55 Myers, “Jailers in the Community,” supra note 54.

56 Yule & Schumann, supra note 49.

57 Ibid.

58 Myers, “Jailers in the Community,” supra note 54 at 69 notes the following are excluded from acting as a surety: “accomplices, the accused’s counsel, persons in custody or awaiting trial on a criminal offence, infants, individuals already acting as sureties for someone else, and non-residents of the province” (see also Gary Trotter, Understanding Bail in Canada (Toronto: Irwin Law, 2013).

59 Myers, “Jailers in the Community,” supra note 54 at 69.

60 Rachel Schumann, “Sureties as Civilian Jailers: Understanding the Role of the Court in the Lives of Accused Released on Surety Bail in Ontario” (2018) 55:4 Can Rev Sociology 532; Trotter, supra note 30.

61 Myers, “Jailers in the Community,” supra note 54.

62 Ulrich Beck, Risk Society: Towards A New Modernity (London, UK: Sage Publications, 1992).

63 Ulrich Beck, World at Risk (Cambridge, UK: Polity Press, 2009); Sandra Walklate & Gabe Mythen, “Beyond Risk Theory: Experiential Knowledge and ‘Knowing Otherwise’” (2011) 11:2 Criminology & Crim Justice 99.

64 Douglas, supra note 9.

65 Elaine Draper, “Risk, Society, and Social Theory” (1993) 22:5 Contemporary Sociology 641.

66 Douglas, supra note 9; Draper, supra note 65; Kelly Hannah-Moffat, “Moral Agent or Actuarial Subject: Risk and Canadian Women’s Imprisonment” (1999) 3:1 Theoretical Criminology 71.

67 Hannah-Moffat, supra note 66; Jonathan Simon & Malcolm M Feeley, “True Crime: The New Penology and Public Discourse on Crime” in Thomas G Blomberg & Stanley Cohen, eds, Punishment and Social Control (New York: Aldine de Gruyter, 1995) [Simon & Feeley, “True Crime”].

68 Simon & Feeley, “True Crime,” supra note 67.

69 Kimberly Kempf-Leonard & Elicka S L Peterson, “Expanding Realms of the New Penology: The Advent of Actuarial Justice for Juveniles” (2000) 2:1 Punishment & Society 66 at 67.

70 Alexandra Natapoff, “The Penal Pyramid” in Sharon Dolovich & Alexandra Natapoff, eds, The New Criminal Justice Thinking (New York: New York University Press, 2017) 71.

71 In Canada, formal risk assessment tools are only used in bail cases involving intimate partner violence.

72 Hannah-Moffat, supra note 66.

73 John W Creswell, Qualitative Inquiry and Research Design: Choosing Among Five Approaches (Los Angeles: SAGE Publications, 2013).

74 Ibid.

75 Crown Attorneys 1-2 [CA].

76 Duty Counsel 1-8 [DC].

77 Youth-in-Transition Workers 1-10 [YIT]. Interviews were also conducted with twenty-five youth (ages eighteen to twenty-four) who have experience in the child protection and criminal justice systems; however, this article focuses on the perspectives of professional groups to illuminate court processes. Youths’ voices are centred in the article. See Rampersaud, “Punitive Justice” (supra note 16).

78 Duty Counsel are lawyers who offer legal support to low-income individuals; their services are provided by Legal Aid Ontario.

79 Yule & Schumann, supra note 49.

80 DC 2, supra note 76.

81 Ibid.

82 DC 3, supra note 76.

83 DC 1, supra note 76.

84 DC 3, supra note 76.

85 Kovarikova, supra note 16.

86 YIT 2, supra note 77.

87 YIT 1, supra note 77.

88 Kovarikova, supra note 16 at 5.

89 A young person’s assigned worker may change during their period of supervision as individuals move to different positions or leave their role.

90 Rampersaud, To Protect or To Punish, supra note 6 at 127.

91 Ibid at 4—5.

92 Ibid at 91.

93 DC 3, supra note 76.

94 Ministry of the Attorney General, “Going to Criminal Court” (2025), online: [perma.cc/L455-8YUX].

95 The surety may also recuse themselves of their responsibilities and financial obligation through a written request to the court. An arrest warrant will then be issued for the accused.

96 By “John Howard Bail Program,” the participant is referring to the John Howard Society of Ontario’s Bail Verification and Supervision Programs (BVSP). These programs are available in some jurisdictions for individuals who do not have a surety, but who are required to have one for release. BVSP coordinators assist courts in assessing whether an individual is suitable for release on bail, and then supervising individuals while released (see John Howard Society of Ontario, supra note 34).

97 DC 7, supra note 76.

98 For more information about JHSO’s BVPS program, see: Alyssa Leblond, Care and Control?: Examining the Role of the Penal Voluntary Sector in Bail Supervision (PhD Dissertation, Queen’s University, 2025) [unpublished].

99 Myers, “Jailers in the Community,” supra note 54 at 66-67.

100 DC 5, supra note 76.

101 Holly Pelvin, Doing Uncertain Time: Understanding the Experiences of Punishment in Pre-Trial Custody (PhD Dissertation, University of Toronto, 2017) [unpublished].

102 DC 5, supra note 76.

103 Kovarikova, supra note 16 at 25.

104 Ministry of the Attorney General, supra note 94.

105 Ibid.

106 Myers, “Shifting Risk,” supra note 30.

107 Myers, “Jailers in the Community,” supra note 54 at 81.

108 DC 5, supra note 76.

109 DC 6, supra note 76.

110 YIT 4, supra note 77.

111 Young adults (ages 18 to 24) who have experience of both the child welfare and criminal justice systems were also interviewed for this study – see footnote 76.

112 According to Myers, “having a criminal record is considered indicative of moral character and will often preclude an individual from acting as a surety, [but] it alone does not automatically disqualify a surety” (see “Jailers in the Community,” supra note 54 at 81).

113 In 2014-2015, the median length of time to resolve (or complete) an adult criminal case was 121 days in Canada. Based on this statistic, Dina’s case was exceptional for its length. With that said, it is likely that case processing times have increased since the COVID-19 pandemic, which resulted in backlog in the criminal courts (Statistics Canada, “Adult Criminal Court Statistics 2014/2015” (2017), online ). 114 Collin-Vézina et al, "Trauma Experiences, Maltreatment-Related Impairments, and Resilience Among Ahild Welfare Youth in Residential Care” (2011) 9:5 Intl J Mental Health Addiction 577 at 577.

115 DC 6, supra note 76.

116 Myers, “Jailers in the Community,” supra note 54.

117 YIT 2, supra note 77.

118 DC 3, supra note 76.

119 Ibid.

120 Ibid.

121 Pelvin supra note 101.

122 Rampersaud, “The Costs of Aging Out,” supra note 5.

123 Rampersaud, To Protect or To Punish, supra note 6.

124 Kovarikova, supra note 16; The Office of the Provincial Advocate for Children and Youth, 25 is the New 21: The Costs and Benefits of Providing Extended Care & Maintenance to Ontario Youth in Care Until Age 25 (Toronto: The Office of the Provincial Advocate for Children and Youth, 2012); Rampersaud, “Punitive Justice,” supra note 16; Marvin Shaffer, Lynell Andersen, & Allison Nelson, Opportunities in Transition: An Economic Analysis of Investing in Youth Aging Out of Foster Care (Vancouver: Fostering Change, 2016).

125 Stephen Gaetz et al, Without a Home: The National Youth Homelessness Survey (Toronto: Canadian Observatory on Homelessness Press, 2016); Shewchuk, supra note 12.

126 Nicholas Bala et al, “Child Welfare Adolescents & the Youth Justice System: Failing to Respond Effectively to Crossover Youth” (2015) 19 Can Crim L Rev 129; Rampersaud, To Protect or To Punish, supra note 6; Rampersaud, “Punitive Justice,” supra note 16; Finlay et al, supra note 17.

127 Myers, “Jailers in the Community,” supra note 54.

128 Pelvin, supra note 101 at 139.

129 DC 3, supra note 76.

130 Criminal Code, supra note 29, s 515(2); Antic, supra note 49 at para 34.

131 Yule & Schumann, supra note 49.

132 Ibid.

133 Myers, “Jailers in the Community,” supra note 54.

134 Myers, “Who Said Anything About Justice?,” supra note 45.

135 John Howard Society of Ontario, supra note 34.

136 Pelvin, supra note 101.

137 Ibid.

138 Myers, “Shifting Risk,” supra note 30.

139 Ibid.

140 Bail Reform Act, SC 1970-71-72, c 37.

141 Myers, “Shifting Risk,” supra note 30.

142 Anthony N Doob & Cheryl M Webster, “The ‘Truth in Sentencing’ Act: The Triumph of Form Over Substance” (2013) 17:3 Can Crim L Rev 365; Myers, “Shifting Risk,” supra note 30.

143 Myers, “Jailers in the Community,” supra note 54. See also Martin L Friedland, Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press, 1965); Deshman & Myers, supra note 53.

144 One useful alternative appears in section 31(1) of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], which permits placement of a young person who has been arrested in the care of a “responsible person” instead of being detained in custody. The responsible person must be “willing and able to take care of and exercise control over the young person” (YCJA, s 31(1)(b)). The responsible person is distinct from a surety because more expansive criteria is permitted in the process of identifying a prospective person, and a financial pledge is not required.

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