THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) No person shall publish by any means any report

a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Everyone who contravenes subsection (1)

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.

DATE: 20031113

DOCKET: M30509

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant) v. S.T.W. (Y.O.) (Respondent)

BEFORE: DOHERTY, FELDMAN and CRONK JJ.A.

COUNSEL: Joan Barrett for the applicant

Mel Green for the respondent

HEARD: November 5, 2003

On a review of the release order made by Pardu J. of the Superior Court of Justice on August 20, 2003 by direction of Chief Justice McMurtry dated September 19, 2003.

E N D O R S E M E N T

[1] The respondent is charged with first degree murder. He was ordered released on bail on strict conditions which included a 6:00 p.m. curfew. His mother and stepfather were named as his sureties.

[2] The Crown successfully sought an order from Chief Justice McMurtry directing the review of the release order under s. 680 of the Criminal Code. We would confirm the order releasing the respondent on bail pending trial.

[3] The respondent is 17 years old. He lives with his mother and stepfather. Apart from one minor prior conviction, he has had no involvement with the criminal justice system. It was not contested at the bail hearing that he was the person who killed the deceased, a friend of his uncle, by striking him with a baseball bat in full view of at least one witness.

[4] There was no evidence offered at the bail hearing to support a conviction on the charge of first degree murder. Certainly, on the evidence offered at the bail hearing, a conviction for second degree murder or manslaughter is a strong possibility. There is, however, some potential evidence of self-defence.

[5] Pardu J. concluded that the respondent’s detention was not justified on the primary or secondary grounds (s. 515(10)(a)(b)). In addressing the tertiary grounds (s. 515(10)(c)), she took into consideration the fact that if the respondent was denied bail, because there is no youth facility in Sault Ste. Marie, he would be held in a facility in Sudbury, a four hour bus ride from Sault Ste. Marie where the court proceedings would take place. Pardu J. also observed that the respondent’s lawyer who lived and practised in Sault Ste. Marie had not been able to travel to Sudbury to see his client in the five weeks between his arrest and the bail hearing. Pardu J. said:

… These conditions would likely impair the accused’s ability to instruct counsel, and will diminish his ability to be attentive at his preliminary inquiry and trial. Detention under these conditions, will not enhance confidence in the administration of justice.

[6] The Crown initially submitted that Pardu J. erred by taking into account the respondent’s conditions of detention in determining whether bail should be granted. The Crown’s position was that under the tertiary grounds, the only conditions open to the court to consider before granting release were the four factors set out in s. 515(10)(c) of the Criminal Code: the apparent strength of the Crown’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment, as well as the circumstances relating to these factors.

[7] In oral argument, however, Crown counsel properly acknowledged that detention conditions could be a relevant consideration in a proper case. We agree. Where the court is considering the granting of bail, as opposed to reasons for denying bail, the court may consider any appropriate factors that impact on the issue of the maintenance of confidence in the administration of justice.

[8] In our view, Pardu J. made no error in this case by considering the respondent’s detention conditions as a factor that impacted on the maintenance of confidence in the administration of justice and militated in favour of granting bail.

[9] The Crown also argued that, in any event, Pardu J. erred in her conclusion that in the circumstances of this case, the respondent should be released. The Crown submitted that under both the secondary and tertiary grounds bail should have been denied.

[10] In our view, Pardu J. made no error in her determination based on the record before her that the respondent was not likely to re-offend if released and that detention was not required for the proper maintenance of public confidence in the administration of justice.

[11] Accordingly, we would not interfere with the decision of Pardu J. to grant judicial interim release on the terms that she did.

[12] In the course of argument, s. 31.1 of the Youth Criminal Justice Act was raised. That section clearly applies to the issue of judicial interim release for young persons. In this case, however, the section was not raised before Pardu J. nor is it necessary for this court to consider it in light of the conclusion we have reached.

[13] The decision of Pardu J., therefore, is confirmed.

“Doherty J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”