Her Majesty the Queen v. R.D. [Indexed as: R. v. D. (R.)]

106 O.R. (3d) 755

2010 ONCA 899

Court of Appeal for Ontario,

Rosenberg, Gillese and Lang JJ.A.

December 23, 2010*

• This judgment is being reported because a publication ban onthe evidence has recently been removed.

Criminal law -- Young offenders -- Bail -- Section 31 of Youth Criminal Justice Act (the "Act") available where tertiary ground is invoked as basis for detention -- Tertiary ground rarely justifying detention of young person -- Application judge ordering detention on tertiary ground of 16-year-old youth with no criminal record who was charged with second degree murder and attempted murder -- Youth's application for review of detention order granted -- Application judge correct [page756] that tertiary ground justified detention but failing to consider application of s. 31 of the Act -- Fresh evidence from evidence at preliminary inquiry disclosing that Crown's case strong but not as compelling as it appeared to be at bail hearing -- Youth having no prior record, was in school and having part-time job -- Plan for s. 31 release including youth living in different city from where offence taking place, being under form of house arrest and substantial surety provided by four family members -- Youth released into care of responsible person in accordance with s. 31 of the Act -- Criminal Code, R.S.C. 1985, c. C-46, s. 515(10)(c) -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 31.

The applicant was charged with second degree murder and attempted murder. The motive for the offences appeared to be a dispute between two rival gangs. He was 16 years old at the time of the charges and had no prior youth record. He had been attending school, had a part-time job and was involved in extra-curricular activities. His mother, both grandparents and an aunt all proposed to act as sureties. The application judge ordered that he be detained solely on the basis of the tertiary ground set out in s. 515(10)(c) of the Criminal Code, holding that his detention was necessary to maintain confidence in the administration of justice. At the time of the bail hearing, the evidence relating to the Crown's case appeared to be extremely strong and the circumstances of the offences were disturbing, including the senselessness of the crimes and their apparent link to gang activity. Following the conclusion of the preliminary hearing, the applicant applied for review of the detention order, arguing that the application judge erred by failing to consider the application of releasing him into the care of a responsible person pursuant to s. 31 of the Youth Criminal Justice Act (the "Act") and that the evidence adduced at the preliminary hearing should be received as fresh evidence on the issue of the strength of the Crown's case.

Held, the application should be granted.

The judge hearing the original bail application correctly held that the accused's detention was not required on the primary or secondary ground. It is rare that the tertiary ground justifies the detention of an adult accused person. Although the principles of the Act favour the release from detention of young persons, there still may be circumstances in which the public perception of the administration of justice requires that a young person be detained on the tertiary ground. However, having reached the conclusion that the young person should be detained on the tertiary ground, for which there was support in the record, the application judge was then required to consider whether the youth should be released to the care of a responsible person pursuant to s. 31 of the Act. The section contemplates a closer level of supervision by a "responsible person" than that normally expected of a surety. The closer level of supervision, together with the penal sanction under s. 139(1) of the Act, which makes it an offence to wilfully fail to comply with an undertaking entered into under s. 31, may, in some circumstances, meet the public confidence concerns of the tertiary ground.

In this case, the preliminary hearing disclosed a prosecution case that was not quite as compelling as the case had been portrayed at the bail hearing. The evidence at the preliminary hearing provided a picture of a chaotic scene and some witnesses described the perpetrator with features inconsistent with the accused and consistent with another possible suspect. There was also evidence that although the offences appeared to be motivated by a dispute between two gangs, the accused was not affiliated with either gang. However, despite the admission of the evidence from the preliminary hearing as fresh evidence, the Crown's case was still relatively strong, and these were very grave offences. Although a [page757] case was otherwise made out for detention on the tertiary ground, it would be appropriate to release the applicant pursuant to s. 31 of the Act to the care of one of his grandparents, and he was required to enter into a recognizance in the amount of $50,000 with four family members acting as his sureties. The accused would be required to reside with his grandparents in a different city from where the offences took place and he was required to enter into a form of house arrest that would still permit him to attend school. His prior good character and the availability of his grandparents as responsible persons militated towards his release. In addition, the 25 months that he had spent in custody since the bail hearing somewhat weakened the aspect of the tertiary ground that considers the potential that he would face a lengthy period of imprisonment, even as a young person, were he to be convicted.

APPLICATION for a review of a detention order.

Cases referred toR. v. Blind, 1999 CanLII 12305 (SK CA), [1999] S.J. No. 597, 180 Sask. R. 145, 139 C.C.C. (3d) 87, 43 W.C.B. (2d) 518 (C.A.); R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, 217 D.L.R. (4th) 536, 293 N.R. 239, J.E. 2002-1881, 165 O.A.C. 319, 167 C.C.C. (3d) 449, 4 C.R. (6th) 197, 97 C.R.R. (2d) 189, 54 W.C.B. (2d) 599; R. v. LaFramboise, 2005 CanLII 63758 (ON CA), [2005] O.J. No. 5785, 203 C.C.C. (3d) 492, 68 W.C.B. (2d) 265 (C.A.), consd Other cases referred to R. v. A. (S.), [2004] ONCJ 184; R. v. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25, EYB 2008-133366, J.E. 2008-1070, 374 N.R. 221, 77 W.C.B. (2d) 524, 231 C.C.C. (3d) 338, 237 O.A.C. 110, 293 D.L.R. (4th) 278, 56 C.R. (6th) 203, 171 C.R.R. (2d) 133; R. v. C. (R.N.), [2007] N.S.J. No. 85, 2007 NSSC 65, 252 N.S.R. (2d) 200, 73 W.C.B. (2d) 307; R. v. D. (J.), [2005] O.J. No. 5729, 2005 ONCJ 491, 68 W.C.B. (2d) 487; R. v. D. (R.), [2008] O.J. No. 5979, 2008 ONCJ 584; R. v. Dakin, [1989] O.J. No. 1348 (C.A.); R. v. E. (K.M.), 1998 CanLII 5361 (BC CA), [1998] B.C.J. No. 619, 105 B.C.A.C. 151, 38 W.C.B. (2d) 33 (C.A.); R. v. Ellard, [2009] 2 S.C.R. 19, [2009] S.C.J. No. 27, 2009 SCC 27, 67 C.R. (6th) 78, 272 B.C.A.C. 1, 245 C.C.C. (3d) 183, EYB 2009-160183, J.E. 2009-1170, 389 N.R. 20, 308 D.L.R. (4th) 193; R. v. M. (E.W.), 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654, 215 O.A.C. 125, 223 C.C.C. (3d) 407, 41 C.R. (6th) 259, 75 W.C.B. (2d) 45 (C.A.); R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 144 N.R. 176, J.E. 92-1761, 51 Q.A.C. 161, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74, 12 C.R.R. (2d) 31, 17 W.C.B. (2d) 580; R. v. Nguyen, 1997 CanLII 10835 (BC CA), [1997] B.C.J. No. 2121, 97 B.C.A.C. 86, 119 C.C.C. (3d) 269, 10 C.R. (5th) 325, 36 W.C.B. (2d) 22 (C.A.); R. v. Oliver, [2008] N.J. No. 166, 2008 NLCA 27, 287 Nfld. & P.E.I.R. 123, 252 C.C.C. (3d) 234; R. v. S. (B.), [2007] O.J. No. 3046, 2007 ONCA 560, 49 C.R. (6th) 397; R. v. S. (R.), [2005] O.J. No. 1605, 2005 CarswellOnt 2011, [2005] W.D.F.L. 2461 (S.C.J.); R. v. Stevenson, [2007] O.J. No. 1955, 2007 ONCA 378, 224 O.A.C. 129; R. v. W. (J.), unreported, May 7, 2010 (Ont. S.C.J.); R. v. W. (N.), 2008 CanLII 50492 (NL PC), [2008] N.J. No. 293, 279 Nfld. & P.E.I.R. 131 (Prov. Ct.); R. v. West, 1972 CanLII 547 (ON CA), [1973] 1 O.R. 211, [1972] O.J. No. 1962, 9 C.C.C. (2d) 369, 20 C.R.N.S. 15 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(e) Criminal Code, R.S.C. 1985, c. C-46, ss. 515 [as am.], (1)(c), (2)(c), (10) [as am.], (a) [as am.], (b) [as am.], (c) [as am.], 680 [as am.], 745.1(c), 771 [as am.] Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3, (1), (a) (i), (ii), (b)(i), (ii), (iii), (2), 29(2), 31, (1), 42(2) (q)(ii), 139, (1) Young Offenders Act, R.S.C. 1985, c. Y-1 [rep. S.C. 2002, c. 1, s. 199], ss. 7.1, 7.2 Authorities referred to Department of Justice Canada, YCJA Explained (Department of Justice Canada) Greene, Mara, et al., Annotated Youth Criminal Justice Act Service, looseleaf (Markham, Ont.: LexisNexis, 2003) [page758] Harris, Peter J., and Miriam H. Bloomenfeld, Youth Criminal Justice Act Manual, looseleaf (Aurora, Ont.: Canada Law Book, 2005) Trotter, Gary T., The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) Varma, Kimberley N., "Exploring 'Youth' in Court: An Analysis of Decision-making in Youth Court Bail Hearings" (2002), 44 Can. J. Crim. 143

Faisal Mirza and Lambert Kwok, for applicant. Robin Flumerfelt, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This is a review directed pursuant to s. 680 of the Criminal Code, R.S.C. 1985, c. C-46 from the decision of Gage J. made on November 12, 2008 [[2008] O.J. No. 5979, 2008 ONCJ 584] ordering that the applicant be detained pending his trial on charges of second degree murder and attempted murder. At the time he was charged, the applicant was 16 years of age, had no prior youth record and was considered a good student. The application judge ordered that the applicant be detained solely on the basis of the tertiary ground set out in s. 515(1)(c) of the Criminal Code, holding that detention was necessary to maintain confidence in the administration of justice. This application presents the difficult issue of the relationship between the principles set out in the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "Act") and the bail provisions of the Criminal Code. The application also involves consideration of s. 31 of the Act. That section uses mandatory language and requires that, where a judge has determined that detention of a youth is necessary under s. 515 of the Criminal Code, the judge must consider releasing the young person into the care of a "responsible person" as an alternative to detention.

[2] For the following reasons, I would allow the application and order that the applicant be released into the care of a responsible person in accordance with s. 31 of the Act. The Basic Chronology

[3] The applicant is charged with second degree murder and attempted murder in relation to two stabbings that occurred in the early morning hours of October 12, 2008. He was arrested on October 17, 2008. The bail hearing was held on November 10, 2008 and the applicant was ordered detained on November 12, 2008.

[4] A preliminary inquiry was held over eight days before Kastner J., beginning on September 22, 2009. She gave her [page759] reasons ordering that the applicant stand trial on the two charges on October 16, 2009.

[5] The applicant initially brought an application in October 2009, pursuant to s. 680 of the Criminal Code, seeking a direction that the order for detention be reviewed by this court. That application was adjourned so that the applicant could obtain a transcript of the preliminary inquiry. In June 2010, the applicant renewed his application for a direction under s. 680. However, that application did not proceed because the applicant changed trial counsel and experienced, we were told, issues with legal aid. The applicant's trial was scheduled to begin in November of this year but has now been adjourned at the applicant's request until June 2011. In the result, the applicant has been held in custody for over two years. Evidence at the Bail Hearing

Facts alleged by the Crown

[6] At the bail hearing, Constable William Ford, of the Peel Regional Police, outlined the allegations in the prosecution's case as it was known in November 2008. On the evening of October 11, 2008, there was a birthday party held for two young women in a community room of an apartment building in Mississauga. The party was chaperoned by adults, DJs provided entertainment and no alcohol was served. The party was to be a "black and white" affair, meaning that none of the attendees were to wear gang colours. Guests were asked to leave at midnight. The applicant was a member of a dance troupe that performed at the party.

[7] After the party, there was a verbal confrontation outside between one guest, N.K., and a small group of individuals over the fact that N.K. was wearing a red baseball hat and carrying a red bandanna. N.K. was told something to the effect of "This is a blue block, you can't fly that flag here." According to Constable Ford, red attire is associated with the Bloods street gang; "blue block" refers to an area that is dominated by the Crips street gang; the Bloods and Crips are rival gangs.

[8] The disagreement spilled out onto the parking lot of the apartment complex. N.K. was followed by several males who demanded he "give up his flag" (meaning the red bandanna). N.K. had attended the party with three other young people, including Nicole L. and Jessica P. (sister of the deceased), and who were close to him in proximity when this occurred. N.K. surrendered his bandanna, at which time it was lit on fire. He then attempted to leave the area, but he was followed by the group and then punched by a member of the group. At this point, [page760] Ms. L. stepped in and tried to stop the assault. She was face to face with a male she described as between 5' and 5'2" in height with a slight build and a short Mohawk, with the sides of his head shaved low and designs cut into them. The police allege that this person is the applicant. The applicant pushed Ms. L., uttering something similar to "get out of my face". She received two scratches on her chest and neck.

[9] Around this time, Michael S. arrived at the scene of the altercation. He had been called by friends to attend and offer assistance. Mr. S. saw the assault on Ms. L. and attempted to come to her assistance. He was then "swarmed" by a group that included the applicant and two other members of the dance troupe. The applicant told the other males to get out of the way. He then took a knife from his waist area and plunged the knife several times into Mr. S.'s upper body, who then collapsed.

[10] The deceased had also been contacted by friends and was now in the vicinity as well. He noticed what had happened to his friend, Mr. S., and he attempted to come to his aid. He was also confronted by the group of males. The applicant approached the deceased and stabbed him in the left side of his chest once. The deceased immediately collapsed, and the group of males, including the applicant, left the area on foot and then took a vehicle to the home of one of the members of the group.

[11] The applicant was arrested on October 17, 2008, as he came out of school.

[12] Three eyewitnesses gave video statements the night of the incident, and several witnesses gave statements in the days following the incident. Constable Ford testified that in total, there were approximately 20 individuals involved in the altercation, including three to six individuals assaulting Mr. S. and the deceased, and others observing. About seven to ten witnesses gave detailed descriptions of the build-up to the confrontation, the confrontation itself and the assaults. Certain of these witnesses knew the applicant and had attended the party; some identified the applicant as the killer. There were no photo lineups.

[13] Constable Ford testified that there was no evidence that the applicant was affiliated with the Crips. He was questioned by the defence about a person called "Rich Boy", who had also been identified as the stabber. Constable Ford testified that the police were attempting to locate Rich Boy to speak to him, but that they were confident that the applicant was responsible for the killing. On re-examination, Constable Ford explained that they had eliminated Rich Boy as a suspect because the eyewitnesses had clearly described the stabber as the applicant, the people who identified Rich Boy were not all at the scene and a [page761] lot of the "evidence" about Rich Boy's involvement had been through word of mouth and gossip.

[14] On re-examination, Constable Ford stated that he was aware that there was one other person at the scene who also had a Mohawk haircut. However, that individual was described as being 5'8" to 5'9" in height, while the applicant was considerably shorter, described as being between 4'11" and 5'2" in height.

Evidence lead by applicant

[15] The applicant called his mother, paternal grandparents and his aunt to testify. All four were prepared to be sureties for the applicant. The applicant's mother lives in Mississauga with her father, the applicant and two other sons aged six and three. She is a transit employee and does split-shift work. She was in the position to post $15,000 bail for the applicant. She had discussions with the applicant's paternal grandparents about a plan of supervision, whereby he would live with them in Brampton. She agreed that if the applicant was released from custody, she would make sure that he attends court when required and stays out of trouble.

[16] The applicant's mother testified that he was in grade 11, and a very good student with a part-time job at McDonald's. She described him as a responsible young man who looked after his younger brothers. She testified that the applicant never caused her any problems and that he was a passive and quiet person. He played basketball in and outside school and took part in a dance troupe. She considered the applicant's participation in the dance troupe as a positive thing, and commented that she had met most of the members of the dance troupe, describing them as nice children.

[17] The other sureties called were the applicant's grandmother, N.R., his aunt, Z.G., and his grandfather, S.R. They all live together, with the aunt's daughter, son and granddaughter, in a three-bedroom house in Brampton. The grandparents were willing to post $30,000 bail, and the aunt a further $5,000.

[18] Both grandparents had been in a car accident in late 2007 and had not returned to work at the time of the bail hearing. They could not be sure of when they would go back to work. They are evangelists, and go to church Friday evenings and Sunday mornings and evenings. There are times that they go to church-related conferences outside of Brampton. The applicant's aunt works a 8:30 a.m. to 4:30 p.m. job but has some flexibility in her work schedule.

[19] Each surety expressed that they had no issues working together and with his mother to ensure that the applicant is [page762] under constant supervision and attend his court appearances. Each also testified that they would not have a problem with contacting police should the applicant breach bail conditions. Each described the applicant as being responsible, non-violent and well behaved. Reasons of the Application Judge

[20] The application judge gave lengthy and careful reasons. He agreed with the Crown's position that the applicant had satisfied the primary ground concerns (Criminal Code, s. 515(10)(a)). That is, it was not necessary to detain the applicant to ensure his attendance in court. The application judge found that secondary ground concerns (Criminal Code, s. 515(10)(b)) were also met. He was satisfied that the applicant's antecedents did not support the inference that there was any likelihood that he would commit further offences or interfere with the administration of justice if released. I agree with that finding and it was not contested by Crown counsel before this court.

[21] The application judge, however, found that the applicant had not satisfied the tertiary ground and that his detention was necessary to maintain confidence in the administration of justice. The application judge reviewed at length the principles that guide consideration of s. 515(10)(c) of the Criminal Code, especially as the provision might apply to young persons. He then explained why detention was necessary by reference to the four factors enumerated in s. 515(10)(c): strength of the Crown's case, gravity of the offences, circumstances of the commission of the offences and the potential for a lengthy term of imprisonment. He also considered other circumstances and particularly the applicant's age, lack of criminal history and the possible impact of a lengthy period of incarceration. There was little dispute about most of these factors. The application judge placed particular emphasis on the apparent strength of the prosecution's case. As he said, at para. 42 of his reasons:

In summary Detective Ford is confident that the evidence will demonstrate that [the applicant] assaulted [Ms. L.], that [he] assaulted [Mr. S.], that [he] produced a knife from his pocket or waistband and that [he] stabbed [Mr. S.] and [the deceased]. Relying upon these propositions and this characterization as advanced through the evidence of Detective Ford I am driven to the conclusion that the case for the prosecution must be properly described as strong. The apparent strength of the Crown's case therefore militates forcefully in favour of detention on the tertiary ground. Obviously to the extent that any of these propositions is flawed my assessment of the strength of the Crown's case will likewise be flawed. I pray that they are not because if they are flawed and the allegations cannot be proven [the applicant], who is in my judgment an otherwise suitable [page763] candidate for release, will have been irretrievably harmed in aid of preserving the repute of the administration of the justice. (Emphasis added)

[22] The application judge did not consider whether the applicant could be released into the care of a responsible person in accordance with s. 31 of the Act. In fairness to the application judge, it does not appear that defence counsel, not Mr. Mirza nor Mr. Kwok, relied upon s. 31. Analysis

The standard of review

[23] For the purposes of this application, the standard of review is adequately set out in R. v. West, 1972 CanLII 547 (ON CA), [1973] 1 O.R. 211, [1972] O.J. No. 1962 (C.A.). As indicated, at p. 217 O.R. of the reasons for decision in that case, the s. 680 review takes the general form of an ordinary appeal. Thus, this court can intervene at least on errors of law and principle. The court can also grant leave to either party to produce new evidence where appropriate. In this case, the fresh evidence relates solely to the question of the strength of the Crown's case and, in particular, evidence concerning the continuing police investigation and the evidence led at the preliminary inquiry. I would admit that evidence. The evidence was not available at the original bail hearing, it is relevant and credible, and it could have affected the result. The issues

[24] This application raises four issues. First, whether the application judge erred in law in failing to consider the application of s. 31 of the Act where detention is otherwise justified on the tertiary ground. Second, the scope of the application of the tertiary ground to young persons. Third, whether there has been a material change in circumstances, principally as a result of the evidence adduced at the preliminary inquiry. And, fourth, whether the applicant should be released.

The section 31 issue

Introduction

[25] Section 31 of the Youth Criminal Justice Act deals with the placement of young persons, who would otherwise be detained in custody, in the care of a responsible person. The provision is unique to the treatment of young persons and implements some of the principles set out in s. 3 of the Act, including s. 3(1) (a)(i), addressing the circumstances underlying a young [page764] person's offending behaviour; s. 3(1)(a)(ii), the emphasis on rehabilitation and reintegration; s. 3(1)(b)(i), a separate system for young persons that emphasizes rehabilitation and reintegration; s. 3(1)(b)(ii), recognition of the greater dependency of young persons and their reduced level of maturity; and s. 3(1)(b)(iii), enhanced procedural protections to ensure fair treatment. Section 31 is not, however, unique to the treatment of young persons alleged to have committed criminal offences. A similarly worded provision was added to the former Young Offenders Act, R.S.C. 1985, c. Y- 1 in 1986 as s. 7.1.

[26] I have set out s. 31 in full in Appendix "A" to these reasons. The basic scheme of the legislation can be summarized as follows. A young person may be placed in the care of a responsible person instead of being detained in custody if the young person would, but for this provision, be detained in custody under s. 515 of the Criminal Code; the responsible person is willing and able to take care of and exercise control over the young person; and the young person is willing to be placed into the care of the responsible person. Both the responsible person and the young person must sign undertakings. The responsible person undertakes to take care of, and be responsible for, the young person attending court and complying with other conditions specified by the judge. The young person undertakes to comply with the arrangement and with any other conditions specified by the judge. Importantly, in situations like this, where the young person would, in the absence of a responsible person, be detained in custody, the judge is required to inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person's care. Finally, wilful breach of the undertaking by either the responsible person or the young person is an offence under s. 139 of the Act and punishable by up to two years' imprisonment.

The legislative history argument

[27] This case concerns the interplay between s. 31 of the Act and the grounds for detention set out in s. 515(10) of the Criminal Code. Particularly, it concerns the so-called tertiary ground: detention to maintain confidence in the administration of justice. Crown counsel submits on this application that Parliament could not have had the tertiary ground in mind when it first enacted s. 7.1, the predecessor to s. 31, as part of the Young Offenders Act, since the tertiary ground was not added to the Criminal Code until after the Young Offenders Act was already in force.

[28] In my view, the legislative history does not support this submission. When s. 7.1 was added to the Young Offenders Act, [page765] s. 515(10)(b) of the Criminal Code allowed for detention of an accused "on the secondary ground . . . that his detention is necessary in the public interest or for the protection or safety of the public" (emphasis added). In R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, the Supreme Court struck down the "public interest" ground for detention because it authorized detention in terms that were too vague and imprecise as to meet the constitutional standard for bail as set out in s. 11(e) of the Canadian Charter of Rights and Freedoms. Section 515(10) was re-enacted in an attempt to comply with R. v. Morales by adding the predecessor to subpara. 515(10)(c): (c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment[.] (Emphasis added)

[29] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, the court upheld what is now referred to as the tertiary ground, except that it held that the phrase "on any other just cause being shown and, without limiting the generality of the foregoing" violated ss. 7 and 11(e) of the Charter. The present version of s. 515(10)(c) is similar in most respects to the provision considered in Hall, except for the removal of that phrase. [See Note 1 below]

[30] As this legislative history shows, some type of public interest ground -- beyond detention to ensure attendance at court or to protect the public -- has always been part of the modern bail regime. See, for example, the cases referred to by Lamer C.J.C. in R. v. Morales, at pp. 730-31 S.C.R., some of which defined "public interest" in terms not unlike the current s. 515(10)(c) as the need to maintain public confidence in the administration of justice, in particular, R. v. Dakin, [1989] O.J. No. 1348 (C.A.). See, also, the discussion in Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2010) at s. 3.4(b).

[31] The legislative history reveals two further important facts. First, s. 7.1 of the Young Offenders Act provided less direction than does s. 31 of the Act. Section 7.1 merely provided that [page765] a young person "may" be placed in the care of a responsible person. Section 31, on the other hand, provides that the judge "shall inquire" as to the availability of a responsible person, if in the absence of a responsible person, the young person would be detained in custody. Second, under s. 7.2 of the Young Offenders Act, a person who wilfully failed to comply with an undertaking under s. 7.1 was guilty of a summary conviction offence and liable to a maximum penalty of six months' imprisonment. Under s. 139 of the Act, a person who wilfully fails to comply with an undertaking given under s. 31 is guilty of a hybrid offence, which, if prosecuted by indictment, carries a maximum penalty of two years' imprisonment.

[32] These changes were intended to enhance use of the responsible person option and thereby reduce resort to pre- trial detention for accused youth. In the YCJA Explained (Department of Justice Canada), under the explanatory text dealing with the "Care of a Responsible Person" the federal government explained the reason for the changes as follows:

Under subsection 31(2), a new provision created in the YCJA, the court must inquire whether a responsible person is available and the young person is willing to be placed. Experience under the YOA indicates that the responsible person provision is not used very often. For example, in a study of 118 bail hearings, the possibility of a using a responsible person as an alternative to detention was not even raised. Requiring the court to inquire as to whether a responsible person is available will ensure that the possibility of this alternative to detention is brought to the attention of the defence counsel, the young person, the parents, and the prosecutor. This requirement also highlights a major objective of the YCJA -- the reduction in the incarceration of youth by using less restrictive alternatives. (Footnotes omitted; emphasis added)

[33] The study referred to in this excerpt is by Kimberley N. Varma: "Exploring 'Youth' in Court: An Analysis of Decision- making in Youth Court Bail Hearings" (2002), 44 Can. J. Crim. 143. The author conducted a study of 118 youth bail cases in four Toronto court locations in 1997 when the Young Offenders Act was the governing legislation. The responsible person provision in s. 7.1 was never mentioned: see p. 159.

[34] Finally, it would be ironic if s. 31 were unavailable in the very types of cases where pre-trial custody could have the greatest negative impact on the young person. The tertiary ground will be invoked most often in murder cases and other very serious cases. Those cases tend to take much longer to come to trial, meaning that the young person may be in custody, away from parental and other family support, for years during a critical time in their development. To fail to recognize the applicability of s. 31 in such cases would undermine the [page767] principles of reintegration and the need to recognize the greater dependency and reduced level of maturity of young persons.

The abrogation argument

[35] Apart from the legislative history argument, it was Crown counsel's submission on the interplay between s. 515(10) (c) of the Criminal Code and s. 31 of the Act that the latter is directed solely to considerations involving the primary and secondary grounds. In effect, Parliament had in mind cases where a young person would otherwise be detained for want of a suitable surety to ensure attendance at court or to prevent commission of further offences. Thus, the purpose of s. 31 was to provide an alternative regime, the written undertaking of a responsible person, where a surety was not available. The monetary pull of a surety bail as contemplated by s. 515(2)(c) and s. 771 of the Criminal Code is replaced by the criminal sanction under s. 139(1) of the Act, which makes it an offence to wilfully fail to comply with an undertaking entered into under s. 31. Crown counsel submits that recognizing a role for s. 31 in tertiary ground cases would "have the effect of abrogating the tertiary ground with respect to young persons" and that s. 31 would "do nothing to assuage the concerns addressed by the tertiary ground".

[36] I do not accept these submissions. Section 31 requires that the judge consider whether the young person should be released into the care of a responsible person; the section does not require a release to a responsible person in every case and there will be cases where public confidence will not be satisfied by such an order. As Kennedy J. said in R. v. W. (N.), 2008 CanLII 50492 (NL PC), [2008] N.J. No. 293, 279 Nfld. & P.E.I.R. 131 (Prov. Ct.), at para. 126: "Although there is a mandate to inquire, the final discretion whether to place that young person with a responsible person is discretionary under section 31(1)." See, also, R. v. S. (R.), [2005] O.J. No. 1605, 2005 CarswellOnt 2011 (S.C.J.), at para. 16.

[37] I do agree with Crown counsel that the s. 31 responsible person regime resembles the surety regime and in many respects is directed to the same considerations, that is, to ensure the accused's good conduct and that the accused attends court as required. Thus, it may be that resort will be had to s. 31 more often where the reason for the detention would concern the primary or secondary ground. In this respect, see R. v. W. (J.) (unreported (Ont. S.C.J.) released May 7, 2010).

[38] In my view, however, s. 31 is not wholly spent by primary and secondary ground considerations. I say that because, as Trotter J. points out, at s. 6.4, an order under s. 31 is "an alternative to custody" and while the responsible person regime [page768] "closely resembles the traditional surety relationship . . . s. 31 contemplates a closer level of supervision than is expected of [a] surety". As he says, the responsible person is expected to "take care of" the young person. Similarly, the authors of Youth Criminal Justice Act Manual point out, at para. 31:00000, that "[t]he statutory requirements imposed upon a responsible person are considerably greater than the obligations imposed upon a surety": Peter J. Harris and Miriam H. Bloomenfeld, Youth Criminal Justice Act Manual, looseleaf (Aurora, Ont.: Canada Law Book, 2005). Where a parent is simply named as a surety for a young person, the parent will in addition to their surety duties take care of the young person, but this is because of duties imposed by law outside of the bail regime. The s. 31 responsible person has the duty to take care of the young person not because of other common law or statutory duties but because of the written undertaking reinforced by the penal consequences.

[39] In my view, the closer level of supervision contemplated under s. 31, together with the penal sanction for both the young person and the responsible person, may in some circumstances meet the public confidence concerns of the tertiary ground. At paras. 26 and 31 of R. v. Hall, McLachlin C.J.C. explained the purpose of the tertiary ground:

Therefore, Parliament provided for denial of bail where paras. (a) and (b) of s. 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is "just cause" for refusing bail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public's confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter. When the public's confidence has reasonably been called into question, dangers such as public unrest and vigilantism may emerge. . . . . .

It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public's confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. (Emphasis added)

[40] In an appropriate case, a judge considering the case of a young person charged with a very serious offence may find that public confidence in the bail system, and the justice system generally, can be maintained through the rigorous and strict regime that is possible under s. 31. While "release into the community" of an adult alleged to have committed the heinous crime referred [page769] to in Hall may not maintain confidence in the bail and justice systems, release of a young person to the close care of a responsible person may not undermine public confidence. In other words, as a result of s. 31, the judge is not faced with a simple binary choice of detention or release into the community. Section 31 gives a further option that may in some respects resemble a form of detention by imposing strict conditions both on the young person and the responsible person. Those conditions could include a form of house arrest and other stringent conditions that keep the young person out of detention but under the close supervision and care of a responsible person who faces penal sanctions for failing to live up to the solemn responsibilities imposed by the undertaking.

[41] Section 31 contributes to achieving the broader purpose of the Act, referred to earlier, to reduce reliance on incarceration for young persons at all stages of proceedings and to give the youth court alternatives to imprisonment. In that respect, I agree with the comments of De Filippis J. in R. v. A. (S.), 2004 ONCJ 184, at para. 10 as to the purpose of s. 31:

Parliament has directed judges not to incarcerate young people pending trial unless it is absolutely necessary or to put it another way, unless there is no other alternative available to the court and that, in my opinion simply mirrors Parliament's direction in the Youth Criminal Justice Act as to what should be done with young people who are found guilty after trial. Those provisions are also loud and clear and they direct judges to incarcerate young persons only as a last resort, subject to obvious exceptions.

[42] To a similar effect are the comments of Pickup J. in R. v. C. (R.N.), 2007 NSSC 65, [2007] N.S.J. No. 85, 252 N.S.R. (2d) 200 (S.C.), at para. 46, that s. 31(1) is obviously an illustration of the general principle in the Act that "incarceration should be a last resort". See, also, R. v. D. (J.), [2005] O.J. No. 5729, 2005 ONCJ 491, at para. 57.

[43] Finally, Crown counsel's submission is inconsistent with the important direction in s. 3(2) of the Act, that the Act be liberally construed to ensure that young persons are dealt with in accordance with the principles in s. 3(1).

[44] There has been little judicial treatment of the relationship of s. 31 and the tertiary ground. One of the most helpful decisions is by Huddart J.A. considering the predecessor provision, s. 7.1 of the Young Offenders Act, in R. v. E. (K.M.), 1998 CanLII 5361 (BC CA), [1998] B.C.J. No. 619, 105 B.C.A.C. 151 (C.A.). She held that an order could be made under s. 7.1 even where the young person would otherwise be detained on the tertiary ground. Huddart J.A. was dealing with a notorious murder allegedly committed by a group of young people (see R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, [2009] S.C.J. No. 27). [page770] The young person was, however, only 15 years of age and had no prior criminal record. Huddart J.A. reasoned as follows, at paras. 16 and 19, in considering the interplay between s. 7.1 and public confidence in the bail system:

As is apparent from the portion of the Youth Court judge's reasons I quoted earlier, the Youth Court judge appears to have considered placement with parents as a "form of release" that would erode "the respect and confidence of the public" for the court system. On the basis of the evidence before this court, I do not agree with that assessment. I consider that a well-informed member of the public would not be troubled by a decision to place a 15-year old girl with her parents pending trial, even one for murder. The public perception of the crime is a factor to be considered if confidence in the administration of criminal justice is to be maintained, but so is the public perception of the alleged offender, who is presumed innocent, and so are the principles Parliament requires to be considered in the interpretation and application of the Young Offenders Act. The ability of a young person's family to supervise the young person must be considered before detention in custody is ordered. . . . . .

It is to be recalled that s. 7.1 comes into play only upon a finding that a detention order is justified. If the public interest does not demand that a young person be detained, a court might well release that young person on the condition that she live with her parents, but it would not be required to make an order under s. 7.1 and formal undertakings would not be required of the parents. (Emphasis added)

[45] In the end, Huddart J.A. ordered the young person's release under the control of her father with both her father and mother to act as sureties. I agree with the comments of Huddart J.A. Section 31, in my view, is available even if the young person would otherwise be detained on the tertiary ground.

[46] Finally, some points about procedure. A strict two-stage procedure in application of s. 31 is both artificial and could prove time-consuming. Accordingly, at the evidence stage of the bail hearing, in a case where s. 31 may be in play, counsel should canvass with proposed sureties their suitability to also act as responsible persons, should the court so order. In addition, since the s. 31 inquiry is mandatory, where detention is a real possibility, the judge or justice has an obligation to raise the issue with counsel. See Mara Greene et al., Annotated Youth Criminal Justice Act Service, looseleaf (Markham, Ont.: LexisNexis, 2003) notes to s. 31.

[47] To conclude, the application judge, having decided to detain the applicant, erred in law in failing to consider whether the applicant could be released into the care of a responsible person.

The tertiary ground and young persons

[48] In the course of his reasons, the application judge noted that the tertiary ground is to be used sparingly as a basis for [page771] refusing release pending trial. He reasoned that given the strong preference for non-custodial dispositions in the Act, "the tertiary ground to justify the pre-trial detention of a youth should be even rarer". The rationale favouring release pending trial for youths is strongest where detention is sought on the secondary ground: see s. 29(2) of the Act. While I agree with the principle that the tertiary ground will rarely justify detention of a youth, I reach that conclusion for slightly different reasons in the case of a youth charged with murder. Accepting the Act's preference for non-custodial disposition, that rationale carries less weight in a case of a youth charged with murder. If sentenced as a young offender for second degree murder, a 16-year-old, like the applicant, is subject to a maximum sentence of seven years, including four years of custody: Act, s. 42(2)(q)(ii). If given an adult sentence, a 16-year-old is to be sentenced to life imprisonment without eligibility for parole for a period of seven years: Criminal Code, s. 745.1(c).

[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 persons and their reduced level of maturity, and enhanced procedural protections. These principles signal 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.

[50] As to the tertiary ground generally, its application is governed by the principle that detention is "necessary" to maintain confidence in the administration of justice having regard to all the circumstances and, in particular, the four listed factors set out in s. 515(10)(c): (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 accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [page772]

[51] Beginning with Hall, courts considering the tertiary ground have held that it is to be used sparingly. This is hardly surprising given the fact that it is invoked only where the accused has already been considered a suitable candidate for release on the usual considerations of attendance in court and likelihood of commission of further offences. After adopting, at para. 27, a statement from an earlier case that detention is justified on the tertiary ground only in "relatively rare" cases, McLachlin C.J.C. said, at para. 31 of Hall:

While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. (Emphasis added)

[52] It is unnecessary to review at length the various ways in which courts since Hall have attempted to implement this principle of sparing use of the tertiary ground. Application of this principle has proved most problematic in murder cases because such cases by definition meet the second and fourth criteria set out in s. 515(10)(c), gravity of the offence and potential liability to a lengthy prison term. Thus, 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. As to the latter factor, some courts have employed the idea of "something more" than the fact of the killing. The "something more" language originates in a helpful pre-Hall decision of the Saskatchewan Court of Appeal, in R. v. Blind, 1999 CanLII 12305 (SK CA), [1999] S.J. No. 597, 139 C.C.C. (3d) 87 (C.A.). Jackson J.A. said, at para. 13, that it is not enough that the crime is extremely grave, that there is potential for a lengthy term of imprisonment and that the offence has the features of any violent crime -- "More is required." The idea of something more is consistent with Hall itself, where McLachlin C.J.C. referred to the high level of concern in the community and the horrific nature of the crime. In Hall, the accused was charged with first degree murder of a relative. The perpetrator had slashed the victim 37 times and attempted to cut her head off. The "something more" language has been picked up by Cronk J.A. of this court in R. v. LaFramboise, 2005 CanLII 63758 (ON CA), [2005] O.J. No. 5785, 203 C.C.C. (3d) 492 (C.A.). Yet even where the circumstances of the offence are particularly egregious, as they were in LaFramboise, other factors may be consistent with release because, as in LaFramboise, the Crown's case was not particularly strong and the accused had limited involvement in the offence.

[53] It must be recognized, however, that the "something more" language is simply a way of emphasizing the need for [page773] sparing use of the tertiary ground as a basis for detention. The tertiary ground is not limited to what a court can imagine to be the most heinous of offences and can be invoked where the circumstances fall short of the horror and community concern noted in Hall: see R. v. S. (B.), 2007 ONCA 560, [2007] O.J. No. 3046, 49 C.R. (6th) 397 (C.A.), at paras. 8-10; R. v. Stevenson, [2007] O.J. No. 1955, 2007 ONCA 378; R. v. Oliver, [2008] N.J. No. 166, 2008 NLCA 27; R. v. M. (E.W.), 2006 CanLII 31720 (ON CA), [2006] O.J. No. 3654, 223 C.C.C. (3d) 407 (C.A.), at para. 32.

[54] The grounds enumerated in s. 515(10)(c) do not exhaust the factors the court must consider where the Crown seeks to rely upon the tertiary ground. That paragraph directs the court to consider "all the circumstances" including the enumerated factors. All the circumstances may, in appropriate cases, include the personal circumstances of the accused. Public perception about a bail decision cannot help but be influenced by whether, for example, the accused is a mature adult with a serious record, as against a young person with no prior record. See Trotter, at s. 3.4(b)(v).

[55] Finally, confidence in the administration of justice does not turn only on the circumstances of the offence and the alleged offender. Public confidence is measured by the standard of a reasonable member of the community (Hall, at para. 41) and, in my view, includes recognition that bail is granted within a context of constitutional guarantees, most especially the presumption of innocence and the right to reasonable bail. In R. v. M. (E.W.), at para. 27, Juriansz J.A., speaking for the court, referred to the pre-Hall comments of McEachern C.J.B.C. in R. v. Nguyen, 1997 CanLII 10835 (BC CA), [1997] B.C.J. No. 2121, 119 C.C.C. (3d) 269 (C.A.), at p. 274 C.C.C.:

The principle that seems to emerge is that the law favours release unless there is some factor or factors that would cause "ordinary reasonable, fair-minded members of society" . . . , or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case . . . , to believe that detention is necessary to maintain public confidence in the administration of justice. (Emphasis added)

[56] The law favours release in the context of young persons, even those charged with very serious offences, as supported by the principles set out in s. 3 of the Act and the principles of fundamental justice recognized by the Supreme Court of Canada that relate to young persons. As Abella J. said in R. v. B. (D.) (2008), 2008 SCC 25, 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, at para. 41:

What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely [page774] that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment. [Emphasis in original]

[57] I will now turn to the application of these principles to the circumstances of this case and also consider whether there has been a material change in circumstances since the original bail hearing.

Application to this case

[58] The applicant is charged with second degree murder and attempted murder, both grave offences, although not as grave as in Hall, where the charge was first degree murder. There is the potential for a lengthy period of imprisonment, although if the applicant is sentenced only as a youth, given the period of pre-trial detention already, this factor does not loom as large as it might if the applicant is sentenced as an adult. At this stage, it is not possible to say what would happen if the applicant is convicted. The potential for a lengthy term of imprisonment on either view favours detention. As to the circumstances surrounding the commission of the offence, there are a number of factors that give rise to concern. The killing and attempted killing are senseless, unprovoked acts committed on innocent victims simply attempting to come to the assistance of their friends. The offences were committed in the open in the presence of a large number of other young people. There is an element of gang culture about the facts that is disturbing; the encounter having begun with a quarrel over gang colours.

[59] The applicant submits that the factor concerning the strength of the prosecution's case now tends to favour his release. He argues that there has been a material change in circumstances. Counsel for the applicant submits that the preliminary inquiry has demonstrated flaws in the prosecution's case that would not have been apparent when the facts were presented to the application judge. Crown counsel submits that there has been little real change in the strength of the prosecution's case. While some parts of the case may have weakened, other parts have become stronger.

[60] Before the application judge, Constable Ford testified in such a way as to leave the impression that witnesses had actually seen the applicant stab both victims. The evidence led at the preliminary inquiry is not as clear. At its highest, the evidence [page775] shows that a person matching the description of the applicant was seen with a knife before entering the crowd of people surrounding the victims. I agree with Crown counsel that this is not a serious change in the strength of the prosecution's case. The evidence remains that only one person was seen with a knife. Further, there is a compelling body of evidence that this person had a somewhat unique description being very short, with a Mohawk haircut and a pattern shaved into the sides of his head. While the principal Crown witness, Ms. L., had never met the applicant before, people who did know the applicant place him at the scene and his appearance the night of the stabbings matches the description provided by Ms. L.

[61] Nevertheless, this was an identification case and there are several aspects of the evidence adduced at the preliminary inquiry that impact on the strength of the identification evidence. The first concerns the alternate suspect, with the street name Rich Boy. At the bail hearing, Constable Ford testified that while the police had heard that some people had identified Rich Boy as the perpetrator, the police had not spoken to him and were confident that the applicant was responsible for the killing because of the descriptions given. At the preliminary inquiry, one witness testified that in fact Rich Boy was the perpetrator. A second witness testified to seeing Rich Boy fighting with one of the victims and moments later seeing that the victim had been stabbed. And, there was evidence that Rich Boy was an affiliate of the Crips gang and therefore, unlike the applicant, may have had a motive for confronting N.K. It seems to have been common ground that the perpetrator had been part of the group that confronted N.K. about wearing the red bandanna in the blue Crips neighbourhood.

[62] There is also the evidence led at the preliminary inquiry from a witness Ms. T.D. that the person with the knife was wearing a dark baseball cap. As well, N.K. testified at the preliminary inquiry that the person who pushed Ms. L. was probably 5'6" tall and was wearing a hat. Ms. L. testified that the youth who scratched her was the one she later saw with the knife. One of the two witnesses called at the preliminary inquiry who identified Rich Boy as the perpetrator also described him as wearing a baseball cap that night. There does not seem to have been any evidence that the applicant was wearing a baseball cap that night and the picture of the applicant taken at the party the night of the stabbings does not show him wearing a baseball cap.

[63] Crown counsel points out that the two witnesses who, at the preliminary inquiry, identified Rich Boy as the perpetrator, had earlier given statements to the police identifying a person [page776] with the applicant's description as being part of the group that confronted the victims. The police have also spoken to Rich Boy's grandmother who provides him with an alibi for at least part of the time when the party was going on. A picture of Rich Boy taken several weeks after the stabbings shows a very different hairstyle from the Mohawk allegedly worn by the perpetrator.

[64] At the bail hearing, Constable Ford presented the summary of the case in a manner that led the application judge to believe that Michael S., the victim of the attempted murder, had confronted the applicant and had identified the applicant as being part of a group of three men that assaulted him and that the applicant then stabbed him. At the preliminary inquiry, Mr. S. stated that he was confused by all of the people around him and when he fell down, he wasn't even aware that he had been stabbed.

[65] At the bail hearing, Constable Ford said that the police had a "very limited description" from Mr. S. that was not different from that provided by Ms. L., "just not as detailed". This statement is not borne out by the preliminary inquiry. Michael S. described one person in the crowd of people around him as having his head shaved at the side but as being six feet tall, which is somewhat closer in height to the description of Rich Boy than the applicant, who is quite short. Admittedly, Michael S. was lying on the ground when he saw this person.

[66] Finally, there was evidence at the preliminary inquiry of at least two other youths wearing the Mohawk style haircut.

[67] In short, the preliminary inquiry transcript includes evidence supporting the view that the applicant was the perpetrator. But, the preliminary inquiry reveals a chaotic scene with witnesses providing varying descriptions of the assailant and some evidence to support an alternative suspect. The application judge was persuaded that the strength of the Crown's case "militates forcefully in favour of detention on the tertiary ground". In my view, following the preliminary inquiry, the Crown's case can no longer be described in such confident terms.

[68] As I have indicated, s. 515(10)(c) of the Criminal Code requires the court to have regard to all the circumstances. In my view, the applicant's age and character are part of the circumstances. He was 16 years of age, had no prior youth record, was attending school and had a good part-time job. He was involved in extra-curricular sport activities and the dance troupe. Although the incident that sparked these serious offences appears to have been related to gang activity, the applicant has no known gang affiliations. In my view, these are relevant circumstances in considering public confidence in the administration of justice. [page777] Conclusion

[69] To conclude, in my view there are two reasons to intervene in this case. First, the application judge erred in principle in failing to consider the application of s. 31 of the Act. Second, there has been a change in circumstances in that the preliminary inquiry discloses a prosecution case that is not as compelling as the case portrayed at the bail hearing.

[70] I entirely agree with the application judge that this was a case that turned on the tertiary ground. The evidence at the bail hearing demonstrated that the applicant would attend court as required and that his detention was not required for the protection or safety of the public. Although the prosecution case has diminished somewhat, it was still a relatively strong case. These were very grave offences and, as outlined above, the circumstances surrounding the commission of the offences are very troubling.

[71] I am satisfied, however, that although a case was otherwise made out for detention on the tertiary ground, this is an appropriate case to release the young person pursuant to s. 31 of the Act. A strict regime under s. 31 would meet public interest concerns and take into account the applicant's prior good character. Another factor favouring release under s. 31 is the length of time that the applicant has already been in custody, which somewhat weakens the fourth factor in s. 515(10) (c) (liability for a lengthy period of imprisonment). Importantly, as well, the plan of supervision and care will require the applicant to reside in a different city than where the offences were committed.

[72] Either of the applicant's grandmother or grandfather would be a suitable responsible person. Accordingly, I would order that the applicant be released provided that either his paternal grandmother or grandfather is prepared to undertake in writing to take care of and to be responsible for the attendance of the applicant in court when required and to comply with the other conditions that I will outline. The applicant must also be prepared to enter into an undertaking to comply with the arrangement and to comply with the other conditions.

[73] The conditions I would impose as part of the undertaking are a form of house arrest, although he will be allowed to attend school, and are set out in Appendix "B". The applicant will also enter into a recognizance in the amount of $50,000, with four sureties to be his mother ($15,000), his aunt ($5,000) and his paternal grandparents (jointly $30,000).

[74] For the purposes of these reasons and given the privacy provisions of the Act, I have not disclosed the names of the applicant's grandparents, mother or aunt and the address of the grandparents' residence. Counsel should be in touch with the [page778] Registrar to provide this information so that the recognizance and undertakings can be completed. I would ask the parties to discuss whether there is a need for other conditions in the undertakings and the recognizance, including whether it is necessary for the applicant to report to the police and not to associate with any named persons or class of persons. If counsel are able to agree on those conditions, they are to provide them to the court. If they are unable to agree, they may arrange to attend before me to finalize the terms of the undertakings and the recognizance. Disposition

[75] Accordingly, I would allow the application and order that the applicant be released in accordance with the terms set out in these reasons.

Application granted.

APPENDIX "A" STATUTORY PROVISIONS

Youth Criminal Justice Act

Policy for Canada with respect to young persons

3(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (i) prevent crime by addressing the circumstances underlying a young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that a young person is subject to meaningful consequences for his or her offence

in order to promote the long-term protection of the public; (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and [page779] (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Act to be liberally construed

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). . . . . .

Detention as social measure prohibited

29(1) A youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures.

Detention presumed unnecessary

(2) In considering whether the detention of a young person is necessary for the protection or safety of the public under paragraph 515(10)(b) (substantial likelihood -- commit an offence or interfere with the administration of [page780] justice) of the Criminal Code, a youth justice court or a justice shall presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(a) to (c) (restrictions on committal to custody). . . . . .

Placement of young person in care of responsible person

31(1) A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody if a youth justice court or a justice is satisfied that (a) the young person would, but for this subsection, be detained in custody under section 515 (judicial interim release) of the Criminal Code; (b) the person is willing and able to take care of and exercise control over the young person; and (c) the young person is willing to be placed in the care of that person.

Inquiry as to availability of a responsible person

(2) If a young person would, in the absence of a responsible person, be detained in custody, the youth justice court or the justice shall inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person's care.

Condition of placement

(3) A young person shall not be placed in the care of a person under subsection (1) unless (a) that person undertakes in writing to take care of and to be responsible for the attendance of the young person in court when required and to comply with any other conditions that the youth justice court judge or the justice may specify; and (b) the young person undertakes in writing to comply with the arrangement and to comply with any other conditions that the youth justice court judge or the justice may specify.

Removing young person from care

(4) A young person, a person in whose care a young person has been placed or any other person may, by application in writing to a youth justice court judge or a justice, apply for an order under subsection (5) if (a) the person in whose care the young person has been placed is no longer willing or able to take care of or exercise control over the young person; or (b) it is, for any other reason, no longer appropriate that the young person remain in the care of the person with whom he or she has been placed.

Order

(5) When a youth justice court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he or she was placed under subsection (1), the judge or justice shall [page781] (a) make an order relieving the person and the young person of the obligations undertaken under subsection (3); and (b) issue a warrant for the arrest of the young person.

Effect of arrest

(6) If a young person is arrested in accordance with a warrant issued under paragraph (5)(b), the young person shall be taken before a youth justice court judge or a justice without delay and dealt with under this section and sections 28 to 30. . . . . .

Offence and punishment

139(1) Every person who wilfully fails to comply with section 30 (designated place of temporary detention), or with an undertaking entered into under subsection 31(3) (condition of placement), (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.

Offence and punishment

(2) Every person who wilfully fails to comply with section 7 (designated place of temporary detention) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or with an undertaking entered into under subsection 7.1(2) (condition of placement) of that Act is guilty of an offence punishable on summary conviction.

Young Offenders Act

Placement of young person in care of responsible person

7.1(1) Where a youth court judge or a justice is satisfied that (a) a young person who has been arrested would, but for this subsection, be detained in custody, (b) a responsible person is willing and able to take care of and exercise control over the young person, and (c) the young person is willing to be placed in the care of that person,

the young person may be placed in the care of that person instead of being detained in custody.

Condition of placement

(2) A young person shall not be placed in the care of a person under subsection (1) unless (a) that person undertakes in writing to take care of and to be responsible for the attendance of the young person in court when required and to comply with such other conditions as the youth court judge or justice may specify; and [page782] (b) the young person undertakes in writing to comply with the arrangement and to comply with such other conditions as the youth court judge or justice may specify.

Removing young person from care

(3) Where a young person has been placed in the care of a person under subsection (1) and (a) that person is no longer willing or able to take care of or exercise control over the young person, or (b) it is, for any other reason, no longer appropriate that the young person be placed in the care of that person,

the young person, the person in whose care the young person has been placed or any other person may, by application in writing to a youth court judge or a justice, apply for an order under subsection (4).

Order

(4) Where a youth court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he was placed under subsection (1), the youth court judge or justice shall (a) make an order relieving the person and the young person of the obligations undertaken pursuant to subsection (2); and (b) issue a warrant for the arrest of the young person.

Effect of arrest

(5) Where a young person is arrested pursuant to a warrant issued under paragraph (4)(b), the young person shall be taken before a youth court judge or justice forthwith and dealt with under section 515 of the Criminal Code.

Offence and punishment

7.2 Any person who wilfully fails to comply with section 7, or with an undertaking entered into pursuant to subsection 7.1(2), is guilty of an offence punishable on summary conviction.

Criminal Code

515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution's case, [page783] (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 accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

APPENDIX "B" CONDITIONS OF UNDERTAKINGS

-- The applicant is to attend court as required, keep the peace and be of good behaviour;

-- the applicant is to reside with his paternal grandparents;

-- the applicant is to remain in his grandparents' residence and yard except for school, medical and dental appointments and emergencies, to consult with counsel, to attend court or to attend church; when not in his residence the responsible person is to ensure that he is to be accompanied by one of his sureties;

-- the applicant is to attend school or comply with home schooling as prescribed by the school board; the applicant is to be accompanied by one of his sureties to and from school and is to return to the residence immediately after the conclusion of the school day;

-- the applicant is to abstain from the consumption of alcoholic beverages and the non-medical use of drugs;

-- the applicant is not to possess any firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition or explosive substance;

-- the applicant is not to associate with or have any communication, directly or indirectly, with anyone known to him to have a youth or adult record;

-- the applicant is to be amenable to the routine and discipline of the residence and abide by the rules of the house as laid down by the responsible person.

Notes

Note 1: The current provision also makes reference to use of a firearm as part of the surrounding circumstances and that the accused may be liable to a minimum punishment for a term of three years or more by reason of the offence involving a firearm. See Appendix "A" for the complete s. 515(10) of the Criminal Code.