WARNING
The court hearing this matter directs that the following notices be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
E.M. (a “Young Person”)
Before Justice G.P. Renwick
Heard on 18 June 2025
Reasons for Judgment released on 18 June 2025
R. Dhandari................................................................................ counsel for the prosecution
N. Chaabane................................................................ counsel for the Young Person, E.M.
REASONS FOR JUDGMENT ON BAIL DE NOVO APPLICATION
INTRODUCTION
1The young person is charged with trafficking benzoylmethylecgonine (cocaine) and fentanyl, six firearms offences for his alleged possession of a loaded handgun, failing to comply with a youth court probation order, and a provincial offence for having cannabis in a vehicle.
2The young person was seen running from a vehicle which had come under police suspicion and he was seen discarding a loaded firearm onto private property as he ran away. That handgun was found with seven live rounds of ammunition. The drugs were found away from view in the vehicle, along with a second firearm. That car was operated by an adult male and when police approached, he began to ram two police cruisers. That adult has also been charged and I am told that he has already been released on bail.
3The young person is seeking release with a restrictive plan including two sureties, G.P.S. monitoring, and around-the-clock supervision. It is envisaged that the young person will attend counselling and other supports, he will connect with his Indigenous roots, and he will benefit from services he has been unable to receive over the approximately 136 days since his arrest, if he is released on bail. The prosecution opposes release on the secondary and tertiary grounds for detention.
THE EVIDENCE
4Today, I heard from the young person’s mother, Ms. S.M. She described the several mental health diagnoses and challenges faced by this young man:
-ADHD;
-Learning Disability;
-Substance Use Disorder; and
-E.M. is a racialized young man. He is indigenous, both on his father’s side (North American Indigenous) and his mother’s (Central American Indigenous).
5S.M. also testified about her challenges. She is a single-mother working full-time. In recent months, her brother, R.C., has moved in during a separation from his partner and he is on a medical disability while he receives chemotherapy.
6S.M. testified, "I take my responsibilities as a surety seriously,” which she also linked to her son’s safety. She believes he is being manipulated by adults to remain involved in crime because he is a young person who is unlikely to be imprisoned.
7S.M. works in Community Health as a Manager for substance use harm reduction and client services, with a flexible schedule allowing her to work from home 2-3 days a week. This flexibility is crucial for supervising the young person.
8She acknowledged that E.M. had breached bail conditions previously when she was a surety. She explained that he had left the house while on house arrest, and she promptly called the police upon realizing his absence.
9S.M. described the proposed plan, which includes house arrest, GPS monitoring, and no contact with the adult co-defendant. She emphasized the seriousness of the situation, stating, "This time in custody was different for him; he’s learned a lot and wants to go in a different direction." She is willing to pledge $10,000, highlighting her financial commitment and the impact it would have on her as a single mother.
10The witness detailed how she would monitor her son, take away his phone when he was not in her presence and ensure she knew who he was communicating with. She would also search her home, including the young person’s bedroom, regularly for contraband. S.M. also highlighted the additional support she now has from her brother, R.C., who is living with her indefinitely.
11Overall, I found S.M. to be credible and reliable. She understood the seriousness of the charges, while noting that the allegations are still unproven. S.M. appears to understand that her son needs to engage in pro-social activities if released and she appears earnest to take him to various social agencies for counselling, assistance, and personal development. She is young, active, has a vehicle, and seems committed to improving her son’s growth while keeping him away from negative influences.
12R.C. is the young person’s uncle. He also seemed very committed to making things work. He was also the co-surety in the past when the young person apparently disobeyed a house arrest term of release. However, it appears that the police were immediately notified and the young person has not been found guilty of breaching a prior court Order.
13R.C. is currently undergoing chemotherapy, but he has planned that the young person’s grandmother would supervise the young person at home during his weekly 2-3 hour absence if the co-surety were unavailable. He detailed how he would monitor E.M., including regular room inspections and ensuring no unauthorized devices are present. He emphasized the importance of keeping the young person motivated and mentally strong.
14The young person’s uncle also emphasized the importance of the GPS monitoring system and his readiness to learn about the technology to ensure it works properly.
ANALYSIS
15Section 29 of the Youth Criminal Justice Act (“YCJA” or the “Act”) provides the requirements for bail in respect of young persons. Detention cannot be used as a substitute for appropriate child protection, mental health, or other social measures.1
16Also, detention cannot be justified unless three criteria are met:
i. The young person must be charged with a serious offence;2
ii. The court must be satisfied of the primary, secondary, or tertiary grounds of bail on a balance of probabilities; and
iii. The court must be satisfied that no condition or combination of conditions would reduce the risk on the primary, secondary, or tertiary grounds to an acceptable level.3
17The prosecution always bears the burden of proof on a balance of probabilities at a youth bail hearing.4
18The bail regime within the YCJA aims to protect young persons and the community. It is recognized that young persons are not fully developed and there can be serious consequences in terms of their development resulting from detaining young persons before trial.
19The Criminal Code also requires that the court pay particular attention to the over-representation of vulnerable populations in the criminal justice system who are disadvantaged in obtaining release on bail.5
20There is no doubt that E.M. is both vulnerable and socially disadvantaged given his race, mental health concerns, and life circumstances.
21In coming to a decision in this matter, I have taken the following into account:
i. The young person has prior involvement with the criminal justice system and he has once been found guilty for possessing a loaded handgun;
ii. The young person has a loving mother who is willing to continue to support him and provide for his needs;
iii. The young person has a supportive uncle who will also directly supervise his release and bail compliance;
iv. The young person was on release in the past and while there were issues, the two proposed sureties have a history of maintaining their obligations and notifying police when there were issues;
v. The young person has mental health and other challenges which can be adequately addressed by service providers and Indigenous supports which are known to the young person and previously accessed by him;
vi. The young person has a stable homelife and living situation where there are two suitable adult, role models.
vii. The crime alleged is serious and involved an incalculable level of risk of harm to the public; and
viii. The young person has been detained for the past four and one-half months.
Secondary Ground Concerns
22As the trier of risk,6 the secondary ground requires the court to assess whether there is a substantial likelihood of further criminality or a danger to public safety if a defendant is released on bail.
23All bail orders or forms of pre-trial release include some risk of re-offence. This fact alone, does not make someone ineligible for release under the secondary grounds. A secondary ground concern must relate to the inability of appropriate terms to respond to the actual risks posed by the specific defendant and her proposed plan of release.
24As well, not all risks of re-offence can be categorized as unmanageable or significant enough to create a substantial likelihood of recalcitrance.
25I disagree that there are secondary ground concerns that are not appropriately considered and mitigated by the proposed plan. I have absolutely no doubt that if the young person remains in his residence at all times, subject to GPS monitoring, and only leaves home in the direct presence of one (or both) of his sureties, the risks of any re-offence or interference with the administration of justice are reduced to acceptable levels.
26The greater concern is the tertiary ground.
Tertiary Ground Concerns
27I accept that no reasonable member of the public would unnecessarily wish to see a racialized, young person who is presumed innocent, held in custody or subject to an onerous form of release which might disqualify him from returning to the community while awaiting trial. These concerns are appropriate and significant.
28However, there are also stories in the media daily that attempt to shock the community about the failings of the bail system and the alleged offenders who run around with deadly handguns and get bail within hours of their arrest.
29A bail justice must balance the constitutional right to pre-trial release, the risks posed by granting bail, the minimization of risk inherent in the specific circumstances, the proper functioning of the administration of justice, and public understanding.
30This is a strong prosecution case. If proven true, the allegations are extremely troubling. This young person is alleged to have run away from police carrying a loaded handgun which he threw into someone else’s backyard. At this point, with admittedly limited information, I do not see a credible Charter application that this young defendant can realistically bring to exclude the evidence that is most damning against him. I agree that there may well be issues of proof of knowledge and control in relation to the contraband items found in the rental vehicle, but this does not diminish the strength of the prosecution case on the primary charges.
31Given his youth record (with a similar finding of guilty in 2023), and the fact that he was on probation at the time, if found guilty, this young person is likely to spend more time in a youth custody centre.
32The tertiary ground concerns are real. There are members of the public who will lose confidence in the justice system if they are made aware that this young person is released on bail – absolutely.
33However, the YCJA is aimed at meaningful accountability rather than knee-jerk punishment.
34Despite my belief that the crimes alleged are serious and that the tertiary ground concerns are established, before ordering the young person’s detention:
-the court must also be satisfied that no condition or combination of conditions would reduce the risk on the tertiary grounds to an acceptable level.7
35It should also be said that the public clamour for harsh penalties and pre-trial detention cannot drive the decision on release. Some in our community, perhaps even a majority of the public, will always want those charged with serious offences held in pre-trial detention. This impulse, while perhaps understandable, is misguided and unconstitutional. Nor does it accord with the nuanced balancing of interests required when dealing with minors charged with serious offences.
36I am satisfied that there is a combination of conditions which can adequately protect the public, prevent re-offence, and reduce the risks engaged in this case to an acceptable level that would satisfy the majority of the public, reasonably informed, who would hear about this case.
37E.M. has been in custody for over four months. He has undoubtedly matured since his last involvement in the justice system and since these allegations arose. The unchallenged evidence of S.M. establishes that the young person is suffering in pre-trial secure detention. The young person seems to now understand the seriousness of his situation. His mother and uncle are determined to protect the public, monitor the young person, and work meaningfully toward his personal, mental, social, and developmental success. Their eyes are open and they have a proven history as responsible sureties.
38The involvement of two committed sureties, the use of GPS monitoring, and the structured plan for E.M.’s growth and development provide a robust framework to address the secondary and tertiary concerns raised. The proposed plan of supervision, the young person’s Indigenous status, and his proposed engagement with community and mental health services support his re-integration and rehabilitation without threatening the community or the perception of the justice system. Rather, public confidence is enhanced by a justice system that responds to youth crime in a meaningful and calculated way to reduce any risk to community safety to an acceptable level.
CONCLUSION
39In these particular circumstances, the prosecution has failed to meet its onus on the secondary and tertiary grounds and the young person may be released until trial on the following conditions:
i. S.M. will be a named surety, with a pledge of $10,000, without deposit;
ii. R.C. will be a named surety, with a pledge of $5,000, without deposit;
iii. Reside and sleep nightly at […] Road, Etobicoke;
iv. Remain in your residence at all times between the hours of 11:00 pm and 6:00 a.m.;
v. Remain in your residence at all other times, except when in the direct presence of one (or both) of your sureties; the only exception to this condition will be when you are meeting privately with your legal counsel, and one (or both) of your sureties are in the same building or vicinity but temporarily beyond your direct presence;
vi. Enrol and comply with the requirements of Safe Tracks GPS Canada electronic monitoring and be amenable to their supervision requirements;
vii. Do not possess any weapons, firearms, ammunition, or explosives or any authorizations or licenses for these;
viii. Do not possess any non-medically prescribed drugs or substances or drug paraphernalia; and
ix. Do not associate with O.C. or anyone with a criminal record, a youth court record, or outstanding criminal or youth court charges.
Released: 18 June 2025
Justice G. Paul Renwick
Footnotes
- See s. 29(1) of the Act.
- …Unless there is a history of a pattern of outstanding charges or findings of guilt: s. 29(1)(a)(ii).
- See s. 29(2)(a)-(c).
- See s. 29(3).
- See s. 493(2) of the Criminal Code of Canada.
- See R. v. Zreik, [2014] O.J. No. 3385 (C.J.) at para. 9, per S.C. Budaci J.P.
- See s. 29(2)(a)-(c).