WARNING

The court hearing this matter directs that the following notice 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:

110. Identity of offender not to be published.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.

111. Identity of victim or witness not to be published.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.

129. 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:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. Order directing matters not to be published for specified period. —(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

P.J. (A Young Person)

Before: Justice Diane Oleskiw

Heard on: November 26 & 29, 2013

Released on: December 4, 2013

Counsel

M. Bellmore and A. Trbovich — Counsel for the Crown

M. Chernovsky — Counsel for the accused P.J. (A Young Person)

RULING ON APPLICATION FOR RELEASE PENDING TRIAL

OLESKIW J:

INTRODUCTION

[1] P.J. is an 18 year old male who is charged with killing Michael Cocomello-Mandino who was 20 years old at the time of his death on March 4, 2013. P.J. is alleged to have stabbed the victim 17 times in a vehicle before the victim got out of the car, stumbled up the street screaming for help, and then died shortly after his mother came to his aid and called 911. P.J. is charged with first degree murder. The Crown has served notice that it intends to apply for an order that P.J. be liable to an adult sentence.

[2] P.J. seeks his release pending the trial of the murder charge. The Crown opposes his release on the tertiary ground and on the secondary ground. For the reasons set out below, I have concluded that P.J. will remain in custody pending his trial. The Crown has established that there is a substantial likelihood that he will commit a serious offence if released on bail, and that exceptional circumstances warrant detention and detention is necessary to maintain confidence in the administration of justice.

THE FACTS

(a) The First Degree Murder Charge

[3] The factual basis for the murder charge was presented to the Court by way of a synopsis, a map, a print out of a web page and a recording of the 911 call made by the victim's mother.

[4] On March 4, 2013 at approximately 9:15 p.m. a female witness, who had exited a TTC bus near Eglinton Avenue and Nairn, heard a person screaming. She determined that the screams of "No, no", were coming from a car stopped south of her on Thornton near Nairn. She saw movement in the car and believed there were four people in the car. She saw a young male struggling to get out. He stumbled out of the car and had difficulty standing. The car pulled away.

[5] The young male was 20 year old, Michael Cocomello-Mandino. He staggered north on Nairn, yelling "help me, help me". Just before he made it to the corner of Nairn and Eglinton, a distance of approximately one block, Michael collapsed. A female ran out of a nearby building to help him. This female was Michael's mother. She held Michael in her arms and called 911. He was bleeding profusely.

[6] The 911 call was made at approximately 9:19 p.m.. In it, the voices of Michael, his mother and the operator can be heard. In the call, Michael says he can feel the blood. He says "hurry up, I can't die". His mother asks him who did this to him, "who stabbed you"? Michael says, "His name is I.W." She says, "E."? and Michael again says "I.W.". Michael died shortly after this call.

[7] The post-mortem examination found that there were a total of 17 stab wounds on the deceased's body and several cuts, abrasions, contusions and lacerations in the head and neck area. This included 2 deep stab wounds to his abdomen, 5 stab wounds to his back, 2 stab wounds in his left thigh, 7 superficial stab wounds to his abdomen and 1 superficial stab wound on the corner of his left eye.

[8] The pathologist determined that the cause of death was a stab wound of the torso, which occurred most likely with a knife. The post mortem report states that the "post-mortem examination revealed a fatal stab wound of the right upper quadrant of the abdomen with a bifurcating wound path. Both wound paths penetrated the right pleural cavity, the dome of the diaphragm and the liver, with an incised injury of the hepatic vein at the end of the deeper wound path. This injury was likely caused by two separate movements without complete retractions of the weapon from the skin."

[9] There were no defensive wounds found on the deceased's body.

(b) The Strength of the Crown's Case

[10] The evidence that P.J. was the perpetrator is strong. First, there is strong evidence that P.J. is the "I.W." referred to in Michael's dying declaration. Three civilian witnesses have identified P.J. as being known to them as "I.W.", including one who provided a sworn KGB-compliant statement to the police. Further, on the website MixCloud, featuring DJs and radio presenters, there is a profile under the name of "I.W.". On I.W.' MixCloud page is a picture of P.J. which appears to have been taken in his bedroom in front of a Grenadian flag. Finally, the deceased's cell phone contacts contain the name and telephone number of "I.W.". Internal police records from a previous investigation on July 10, 2011, show that P.J.'s cell phone number is listed as the same phone number that is in the deceased's list of contacts under "I.W.".

[11] Second, a gray baseball hat was found in the area where the female witness saw the car stopped and the deceased stumble out of the car. The hat was a few feet away from numerous drops of blood and it had visible blood staining on it. Analyses of dna samples taken from the hat show that, most probably, it is the deceased's bloodstains on the baseball hat and P.J.'s dna on the inside headband of the hat. There is a reasonable inference that P.J. wore the hat on the night the deceased was killed.

[12] Third, telephone records for the deceased and P.J. reveal that, on March 4, 2013 between 2:45 p.m. and 8:52 p.m. there were 70 texts between P.J. and the deceased. The last 30 texts on the deceased's phone before he was murdered were all from P.J.'s phone and the last text received from P.J.'s phone was at 8:51:56 p.m.: that is less than 30 minutes from the time the deceased stumbled out of the car. There were also 4 telephone calls between P.J. and the deceased on the day of the murder. The last two telephone calls occurred between 9:02 - 9:11 p.m.. Both of these calls hit off the cell tower at Eglinton and Dufferin placing P.J. in the area of the homicide at the relevant time. P.J.'s telephone records show that he received a call from the deceased that lasted 34 seconds at 9:11 p.m. on March 4, 2013. Given that the first 911 call was at 9:19 p.m. - just 8 minutes later - the call from the deceased to P.J. was moments before the deceased was stabbed to death.

(c) The Young Person

[13] P.J. is now 18 years old. On March 4, 2013, he was 2 months shy of his 18th birthday. He completed grade 11 but has not completed grade 12. He was registered for school in September 2012, but often skipped classes or school altogether. By March 2013 he was no longer going to school at all. Nor did he have a job. P.J.'s mother bought him a car to go job hunting. His mother paid for his cell phone and his parents provided him with spending money. He still did not have a job between January to August 2013, although, according to his mother, he had a job offer to work at The Brick that could not be fulfilled because of his arrest on August 15, 2013.

[14] Since his arrest, and while detained, P.J. has been attending classes at the R[…] School. Five certificates of positive behaviour, two awards of excellence and one course completion certificate were filed. They indicate that P.J. is a diligent and bright student; that he is respectful of others and is inclusive, caring and cooperative on a regular basis.

[15] P.J. has no previous youth record. He has had some experience in the youth court system that led his mother to pay restitution on his behalf in the past. He has not paid her back.

[16] There is no evidence of any wrong-doing by P.J. between the time of the murder in March 2013, when P.J. was under surveillance, and his arrest on August 15, 2013.

(d) The Release Plan

[17] It is proposed that the P.J. be released on bail with his mother and father as sureties or responsible parties. Both testified before me.

[18] P.J.'s mother testified that she is a personal support worker who works five days per week from 3:00 p.m. until 11:00 p.m. She is out of the house and busy at work from approximately 2:00 p.m. until approximately 11:30 p.m. most days. P.J.'s father is at home much more, but he appears to suffer from various physical ailments and demonstrated in his evidence that he has extremely little involvement in his son's life.

[19] Both parents testified that they would be willing to act as a responsible person or a surety and that they would supervise P.J. should he be subject to house arrest. However, in cross-examination, P.J.'s mother said the release plan is that P.J. would go to school and work at the Brick in Brampton. His father could drive him or he could borrow his sister's car. The parents would depend on the school to let them know if P.J. did not go to school and really had no plan to supervise him during his work and travel hours. Notwithstanding the serious charge that their son is facing, it appeared to this Court that both parents intended to supervise him as they had prior to his arrest -- when he did not listen to them urging him to go to school or get a job.

[20] It was also evident from the parents' evidence that they know very little about their son. The parents did not know P.J.'s friends. They knew the first name of one friend, Michael, and P.J.'s girlfriend Vanessa. They had no idea what P.J. did with his friends. They did not know where P.J. was when he was not in school. When P.J.'s mother told him that it was important for him to go to school, P.J. either lied to her or "just smiled at her". He ultimately left school entirely by March 2013.

[21] P.J.'s father knew even less about his son than the mother. He could not identify the Granada flag in P.J.'s bedroom and said that he leaves going into their son's bedroom to his wife. He had only ever been to his son's school once and generally left it to P.J.'s mother to deal with the school because she was closer. He considered P.J.'s friends to be his own private business and he admitted that P.J. does not listen to his parents.

[22] The parents' attitude toward supervision and their lack of motivation to change their "hands-off" approach to parenting, is indicated by their failure to make changes after they learned that their son was a friend of a person who was murdered. It is telling that shortly after the murder, P.J.'s mother accompanied him to the police station to talk to the police. At this time P.J. gave her some information, about how the deceased was a friend of his and even that he had texted the deceased a few times on the day of his murder. The parents made no more efforts to learn more about their son's friends or their son's whereabouts.

[23] I find that both P.J.'s mother and father are law abiding individuals who have attempted to steer their son in the right direction. However, they know little about what he does with his time and have been unable to exercise control over P.J. for some time.

THE POSITIONS OF THE PARTIES

[24] The Crown takes the position that the particular brutality of the murder and its inexplicability demonstrate that P.J. must be detained to protect the public. Further, the Crown says that the brutality of the murder together with the strength of the Crown's case mandate P.J.'s detention in order to maintain confidence in the administration of justice. The release plan put forward is not adequate to meet the risk either on the secondary or tertiary grounds and neither parent is acceptable as a responsible person.

[25] The defence submits that house arrest with the only exception being for P.J. to attend school would satisfy any concerns on the secondary or tertiary grounds.

ANALYSIS

(a) Overview of the New Judicial Interim Release Scheme under the YCJA

[26] Amendments to the Youth Criminal Justice Act (YCJA) brought about by the Safe Streets and Communities Act, S.C. 2012, c. 1 altered the law of judicial interim release for young people. The new bail provisions are set out in sections 28, 29 and 30 of the YCJA. Those sections now provide a comprehensive code for determining when young persons may be detained pending trial. A helpful comparison of the former and present bail provisions is provided by Gorman, J. in R. v. R.B., 2013 NUCJ 7, [2013] N.J. No. 11 (Prov. Ct Nfld) and cited with approval in R. v. J.T.C., [2013] N.S.J. No. 520 (N.S.S.C.) at para. 28. Justice Gorman also provided an excellent summary of the steps and principles the Youth Court must apply when considering judicial interim release in R.B. at paragraph 40:

40 The judicial interim release conditions contained within section 29 of the Youth Criminal Justice Act can be summarized as follows:

1. The provisions of Part XVI of the Criminal Code apply except to the extent that they are inconsistent with or excluded by the Youth Criminal Justice Act;

2. Judicial interim release can only be denied to a young person who is charged with (1) a "serious offence" or (2) a young person who has a "history" of outstanding charges or findings of guilt;

3. If either prerequisite is established, the denial of bail to a young person requires a finding, on a balance of probabilities, that:

i. there is a "substantial likelihood" that the young person will not appear in court; or

ii. the young person's detention is necessary for the "protection of the public"; or

iii. the young person is charged with a "serious offence"; "exceptional circumstances" warrant the detention of the young person; and neither (i) nor (ii) apply. If so, the bail judge is required to consider (a) the apparent strength of the Crown's case; (b) the gravity of the offence; (c) the circumstances of the offence (including whether a firearm was used); and (d) the potential for a lengthy custodial sentence to be imposed

4. If one of these three categories is established, judicial interim release is only to be denied if the judge is satisfied that the imposition of release conditions would fail to sufficiently alleviate the grounds for denial of release;

5. The denial of judicial interim release is not to be used as a substitute for appropriate child protection, mental health or other social measures; and

6. If the judge concludes that judicial interim release should be denied, she or he must consider whether the young person could be placed in the care of a "responsible person."

(b) Onus and Preference for Release

[27] Section 29(3) of the YCJA now provides:

29(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.

Thus, unlike a bail hearing for an adult charged with murder, the onus to establish that detention is necessary for the protection of the public or to maintain confidence in the administration of justice always remains on the prosecution.

[28] Further, in applying the specific tests set forth in s. 29(2), I am mindful that the YCJA favours release in the context of young persons - even those charged with very serious offences. Detention on any basis should be imposed only in rare circumstances. In my view, notwithstanding that the statement of principles in s. 3 of the YCJA has been altered slightly by the 2012 amendments, the rationale for this, as outlined by Rosenberg J. A. in R. v. R.D., 2010 ONCA 899, [2010] O.J. No. 6111 (C.A.) at paras 49 and 56, remains unassailable today. At para. 49 of that decision Rosenberg J.A. stated:

49 There are, however, other provisions of the Act that demonstrate a preference for release pending trial and thus detention on any basis, including the tertiary ground, only in rare circumstances. Most important are the principles briefly mentioned and set out in s.3 and in particular the principle of a separate criminal justice system for young persons emphasizing rehabilitation and reintegration, accountability consistent with the greater dependency of young person and their reduced level of maturity, and enhanced procedural protections. These principles signal that that it will be rare that detention of a young person will be required to maintain confidence in the criminal justice system and the bail system. Added to this is the special direction in s. 31 that requires consideration of placement with a responsible person even where detention, including detention on the tertiary ground would otherwise be justified under s. 515 of the Criminal Code.

(c) The Secondary Ground

[29] Section 29(2)(b)(ii) of the YCJA effectively replicates s. 515(10) (b) of the Criminal Code except that it does not include consideration of whether there is a substantial likelihood that the accused will "interfere with the administration of justice" but does include a requirement that the substantial likelihood of offending must be for a "serious offence".

[30] As Justice G. Trotter, stated in R. v. R.H., 2006 ONCJ 116, [2006] O.J. No. 1447 at para. 29:

In assessing the risk of future offending, the brutality of the index offence is a relevant factor: Regina v. Rondeau (1996), 108 C.C.C. (3d) 474 (Que. C.A.) and Regina v. Braun (1994), 91 C.C.C. (3d) 237 (Sask. C.A.). While still unproven, it is an important fact that should be considered in the determination of whether the public is at risk. Indeed, it would be artificial to gauge the potential risk to the public without looking at the features of the index offence. The fact that, at present, it is a mere allegation is offset by the strength of the Crown's case. [emphasis added]

[31] This same approach was upheld by MacPherson J.A. in R. v. Gulyas, 2013 ONCA 68, [2013] O.J. No. 417 (C.A. In Chambers) at paras. 7 - 10. In that case the extreme violence of the killing was the principle reason for the application judge's finding that there was a substantial likelihood that the accused person would, if released from custody on any basis, commit a criminal offence or interfere with the administration of justice. MacPherson J.A. also approved of the observation of Proulx J.A. in R. v. Rondeau (1996), 108 C.C.C.(3d) 474 (Que.C.A.) at p. 480 that: "The more a crime like the present one is unexplained and unexplainable, the more worrisome bail becomes for society".

[32] Here, the victim was stabbed 17 times in the confines of a car. The fatal wound, with the bifurcated wound path, likely caused by two separate movements without complete retraction of the weapon was particularly egregious. The victim had no defensive wounds whatsoever. He was left to die from his wounds by someone who described himself as a friend and who had communicated with him 74 times that day, and had talked to him on the telephone only minutes earlier. The unexplained, brutal, up-close and personal violence is indeed, worrisome for society.

[33] Trotter J.'s caution stated in R.H. at para. 29 must always be kept in mind at a bail hearing:

It is well recognized that one must be careful in gauging the strength of the Crown's case at a bail hearing. Given the reduced level of formality in terms of procedure and the rules of evidence, the Crown's case can appear artificially cogent at a bail hearing: see Regina v. Perron (1989), 51 C.C.C. (3d) 518 (Que. C.A.), Regina v. Baltovich (1992), 68 C.C.C. (3d) 362 (Ont. C.A.) and Regina v. A.B. (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.).

[34] With this caution in mind, I conclude that there is an argument for first degree murder, and an exceptionally strong case for second degree murder against P.J. The nature of the evidence linking P.J. to the murder is currently strong and it is not vulnerable to deterioration. The dying declaration of the deceased identifying "I.W." as the person who stabbed him is captured on audiotape and will be heard by the jury. Evidence that links "I.W." to P.J. is also strong: with a KGB-compliant civilian statement, an internet photograph of P.J. identifying him as "I.W." and the victim's contact list including "I.W." with a phone number that matches the telephone number for P.J. in police records. Further, there is objective evidence in the form of telephone records and dna analyses providing important links to P.J.'s participation in the stabbing of the deceased.

[35] P.J. has no previous youth record. However, at least since the school year of 2012 – 2013 began, he did not follow his parents' direction to go to school or find a job.

[36] I find on the balance of probabilities that P.J.'s detention is necessary for the protection or safety of the public, having regard to all of the circumstances, including that there is a substantial likelihood, based on the extreme, unexplained violence used in this case, that P.J. will, if released from custody, commit a serious offence. In making this finding I have considered whether any release plan involving only his mother and father would realistically attenuate the risk of P.J. committing further violent offences. While P.J.'s mother knew somewhat more than his father about her son's current life, including his difficulties at school, both parents had only the thinnest knowledge of his circumstances. Importantly, even after P.J. spoke to the police in March 2013, about the murder of his friend, neither parent took any significant steps to learn more about what P.J. was doing, so as to lessen the chance that he might be the next victim. After considering their evidence carefully, I am satisfied that in the past, the parents have not been able to control P.J. outside of the home and there is nothing about their evidence that provides any assurances that they would be able to exercise sufficient control over P.J. if he were released on bail.

(d) The Tertiary Ground

[37] Even if P.J.'s detention was not justified under s. 29(2)(b)(ii), I find that his detention is necessary to maintain confidence in the administration of justice pursuant to s. 29(2)(b)(iii).

[38] Section 29(2)(b)(iii) of the YCJA is a modified version of the s. 515(10) (c) of the Criminal Code. Under the YCJA, the tertiary ground can only apply if the young person is charged with a "serious offence". Further, the Court must be satisfied that there are "exceptional circumstances that warrant detention" in addition to being satisfied that detention is necessary to maintain confidence in the administration of justice. Like adult bail hearings, the minimum factors that court must consider in deciding whether detention is necessary to maintain confidence in the administration of justice include:

i. the apparent strength of the prosecution's case,

ii. the gravity of the offence,

iii. the circumstances surrounding the commission of the offence, including whether a firearm was used, and

iv. the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence.

[39] As Rosenberg J.A. noted in R.D. at para. 52, application of the principle that sparing use is to be made of the tertiary ground has proved most problematic in murder cases because such cases, by definition, meet the second and fourth criteria. Application of the tertiary ground in murder cases will turn on the apparent strength of the Crown's case and the circumstances surrounding the commission of the offence. Rosenberg J.A. noted that some courts have employed the idea of "something more" than the fact of killing is required for the circumstances surrounding the commission of the offence to bring it within the necessity requirement of the tertiary ground. Rosenberg J.A. acknowledged that the "something more" language is simply a way of emphasizing the need for sparing use of the tertiary ground as a basis for detention.

[40] I have considered all of the circumstances, including the four specified factors in s. 29(b)(iii) and the principles set out in s. 3 of the YCJA. Here, P.J. comes before the court with no previous youth record, and a supportive family. He appears to be intelligent and capable of respectful behaviour. However, for some time prior to the murder he was behaving contrary to his family's values: He had stopped going to school altogether and he was not working. His parents really had no idea how he was spending his time.

[41] It is obvious that murder is a grave offence. Further, if sentenced as a young person for first degree murder P.J. is subject to a maximum sentence of 10 years, including 6 years of custody and if sentenced as a young person for second degree murder he is subject to a maximum sentence of 7 years, including 4 years of custody: (YCJA, ss. 42(2)(q)(i) and (ii)). If given an adult sentence P.J. would be sentenced to life imprisonment without eligibility for parole for 10 years if convicted of first degree murder and 7 years if convicted of second degree murder: (Criminal Code, ss 745.1(b) and (c).)

[42] As set out in paragraph 34, above, the Crown's case for second degree murder is extremely strong. Further, the circumstances surrounding the commission of the offence, particularly those highlighted in paragraph 32, above, make this a heinous crime. The level of relentless violence, the element of ambushing, (suggested by the communication between the victim and P.J. prior to stabbing and the lack of any defensive wounds on the victim), and the fact that the victim was left to stagger home to die make this an exceptional case that warrants detention. The violence is unexplained. All of the circumstances ground a finding that these are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice.

[43] I am further satisfied that no condition or combination of conditions of release, as long as they involve P.J.'s parents only, would operate to meet the public interest concerns and maintain confidence in the administration of justice.

(e) Responsible Person s. 31 YCJA

[44] For the same reasons set out in paragraphs 35, 40 and 43 above, I am satisfied that P.J.'s parents, although willing, are not able to exercise control over P.J. such that they could act as responsible persons. Based on defence counsel's submissions, I assume that P.J. is willing to be placed in their care. However, given my finding that the parents cannot control him, I find that placement in the care of a responsible person is not possible to either reduce the likelihood that P.J. will commit a serious offence or to maintain confidence in the justice system.

CONCLUSION

[45] I have concluded that P.J.'s detention is necessary to protect the public and that, in any event, this is one of the rare cases in which detention is necessary in order to maintain confidence in the administration of justice.

[46] P.J. will be detained in custody until he is dealt with according to law.

Released: December 4, 2013

Justice D. Oleskiw

Youth Court Judge