Court File and Parties

Court File No.: 12-Y1123

Ontario Court of Justice Youth Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen v. O.M.

Publication Ban Notice

PROTECTED FROM PUBLICATION BY SECTION 110 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances

• F. Rupert – Counsel for the Crown
• J. Lalande – Counsel for the Crown
• K. Hall – Counsel for the Accused

Hearing Information

Date: Wednesday, November 14, 2012 Location: Ottawa, Ontario Justice of the Peace: B. Mackey

Reasons for Decision on Bail Hearing

MACKEY, JP. (Orally):

The Court has before it the matter of O.M. who is in the box. Miss M, you may stay in your seat just there, and I am making a decision today, of course. We had four days of a bail hearing. This will be the decision regarding the bail hearing and potential release.

Publication Ban

The Court wishes to remind everyone in the room that there is a publication ban on this matter. It is a youth matter and that the ban covers, it restricts the evidence taken, the information given, or the representations made, and the reasons given in this proceeding. They shall not be published in any document, or broadcast or transmitted in any way, that includes electronically and modern devices, until after the accused is either discharged or committed for trial and the trial is completed. There are severe penalties for disobeying that order.

Preliminary Remarks

Let me take a moment at the beginning to indicate – and, by the way, this is a written decision delivered orally today, to indicate that the two Crown prosecutors, Miss Rupert and Mr. Lalande, presented their case professionally, making good use of their audiovisual aids and reference material. Similarly, defence counsel, Mr. Hall, presented an equally professional and direct case for his client with his unique ability to focus on matters of interest.

First, the Court notes that the evidence from the Children's Aid Society was not overly helpful, and defence counsel did a good job in highlighting that issue. However, the Court is aware of their opposition to placement of the accused in the home with children under the age of sixteen.

Legal Framework and Principles

It may be trite to remind the listener that a Justice has certain responsibilities under the Youth Criminal Justice Act. In layman's terms, the Justice is to treat a youth differently from an adult; that is to say less aggressively with greater emphasis on reuniting the youth with family.

In legal terms, a Justice is to exercise a multi-disciplinary approach to a young person's needs taking into account the community, family and others concerned with the development of the young person. The Justice is also to reduce any over-reliance on incarceration for non-violent young persons as well as emphasize fair and proportionate measures. Timeliness is of the essence with the young person including intervention and promptness in dealing with the matter before the court. This is the primary reason why I dealt with the decision promptly and made myself available soon after the completion of this exceptional four day bail hearing.

Circumstances of the Accused

The Court is also sensitive to the fact that this young female, this girl was fifteen when charged and celebrated her sixteenth birthday while incarcerated. The Court is further aware that the Crown has filed notice that it will seek an adult sentence, which, if granted, could, on a finding of guilt, impose a more lengthy sentence on this young person that she would otherwise face.

This is somewhat of a unique case, an exceptional case, in that there appears to be no precedent in regards to the Crown's application for detention of a youth and the application for an adult sentence regarding the nature of these charges. This young person stands before the court presumed innocent of any of the charges. She has no criminal record.

Nature of the Charges

The four day bail hearing involving serious charges of human trafficking, forcible confinement, sexual assault, possession of child pornography, abducting a child under fourteen, sexual exploitation, robbery, assault and administering a drug, to name a few of the charges, is simply a hearing, albeit an important bail hearing.

The Court is to establish whether or not the accused can be released, and if so under what conditions, keeping in mind the burden is on the Crown not the accused. The Crown is seeking detention on both the secondary and tertiary grounds. A four week trial has now been set for this young person starting in April and finishing in May of 2013. If she is detained, subject to any appeal, she will be held until the outcome of the trial.

Reminder for all newcomers to the court, there is a publication ban on all of the matters dealing with this young person.

Factual Background

It is alleged that M committed these offences in 2011 and 2012 against seven alleged victims ranging in age from thirteen to nineteen with one other girl not willing to give evidence. In a nutshell, the Crown alleges the sexual exploitation of young females held captive through assaults, threats, intimidation, control and drugs for profit. There has been a good deal of media attention even internationally, given the age of the three accused girls, the alleged victims, the nature of the charges, particularly human trafficking. It is a rare charge in Canada and even rarer for a youth. The two other accused youths have been released at bail although one has since breached and is back in custody.

Legal Test for Detention

There is no presumption against detention on the primary or tertiary grounds, and due to the nature and exceptionality of the charges facing this young person the Crown contends that the accused does not benefit either from the presumption against detention with respect to the secondary grounds. The Court agrees.

The secondary ground relates to a public safety concern and only allows for detention where there is a substantial likelihood that the accused would pose a danger to the public or interfere with the administration of justice. The public includes the general public as well as complainants, victims and witnesses.

The tertiary ground deals with the public's confidence in the administration of justice. The Court must take into account the apparent strength of the case, the gravity of the offence, the circumstances and the potential for a lengthy term of imprisonment. It is recognized that this ground should only deal with the more egregious cases and is to be used sparingly especially with youths.

The evidentiary burden on the Crown is the minimum standard on a balance of probabilities that is to say an enhanced, more likely than not scenario.

Proposed Release Plan

The Court is aware of a plan for this young person's release that involves an older sister and living at her residence, a bond of $2,000 and any other conditions the Court may wish to impose including house arrest.

Analysis of Tertiary Ground

Dealing first with the tertiary ground, the Court is cognizant of the well-informed, fair-minded, reasonable member of the community analysis to be used in considering the maintenance of confidence in the administration of justice within our community. A fundamental question that the Court will seek to address is will the public's confidence in the administration of justice be undermined by the release of this person? This is notwithstanding the aforementioned onus on the Crown.

The four statutory conditions and factors that must be addressed are:

• The apparent strength of the case. In that regard, the Crown has not only incriminating cellphone records, online documents and videos, but also a number of alleged victims, evidence of their personal property, found in the accused home and bedroom, and their statements.

• The gravity of the offence is apparent in the witness statements, the videos, the photographs, the cell records, online documents with particular reference to the charges of human trafficking, forcible confinement, sexual assault, possession of child pornography, abducting a child under fourteen, sexual exploitation, to name a few.

• The circumstances suggest an organized and escalating approach including violence, threats, drugs and intimidation of a number of underage victims.

• And the fourth element is a lengthy term of imprisonment, which is possible given the Prosecution's notice of seeking an adult sentence upon conviction.

The Crown asked in submissions for the Court to consider the plan of release when evaluating detention of the tertiary ground. The Court intends to do just that in all cases, but first the Court will deal with the secondary ground.

Analysis of Secondary Ground

A total of seven alleged victims have been identified as well as another who is uncooperative. This, in itself, poses an issue regarding not only the protection of these young girls, but additionally, the potential for interfering with the administration of justice going forward. The Court is aware of the fear expressed by some of the alleged victims regarding the accused and possibly family, friends and associates.

Would the accused commit additional offences if released? The Court has already recognized the strength of the Crown's case. Additionally, there is evidence of a cycle of escalating violence, coercion and manipulation involving a series of victims as young as thirteen that was organized toward profiting from illegal sexual acts. The accused has often been recognized as the boss or ringleader of these activities. Some of the alleged victims were known to the accused and others were almost strangers. This is a case that appears to have involved the use of social media, school, drugs and alcohol, friends, associates, unlicensed cabdrivers and johns. It's noted by the Court that wall graffiti at the home and the bedroom of the accused, and online pages also described disrespect for authority.

The most pressing secondary ground concern in this case is that of interfering with the administration of justice. This is a live issue because of evidence that measures were taken to modify, to alter the Facebook account of the accused possibly under her direction. The concern is that given the charges, the age of the potential witnesses and the potential for a lengthy sentence of the accused or others acting on her behalf, that she would attempt to interfere with this process.

When the Court looks at this young woman the Court is struck with her calm, restrained innocent demeanour, which is in such contrast with the evidence before the Court, and the video interview with the police, it is truly difficult to imagine someone so young facing such horrific charges. This is not where a sixteen year old should be.

Nevertheless, here we are, and based on the Court's analysis of the tertiary and secondary grounds this accused requires a convincing plan to satisfy the Court that its concerns would be substantially reduced. Otherwise, not only is the tertiary ground at play, but with the evidence weighing in favor of interference with the administration of justice there would be a substantial likelihood, a high risk, of interference on the secondary ground.

Assessment of Proposed Surety

So here is the plan. The older sister of the accused is proposed as her surety. She is in her early twenties. The accused would live with her and her young child under certain conditions if released. The Crown raised a number of issues regarding the surety, not the least of which is the reference to her by one of the alleged victims as the "real boss". There are also numerous police incidents from charges that were dropped to being in and around drugs and guns even though she does not have a criminal record. Her boyfriend, and the father of her child does have a criminal record, has a string of police incidents, has some suspicious friends and appears to be less than honest with the proposed surety. In fact, he has a warrant out for his arrest and did not inform the mother of his child of such an important detail.

The issue of a loaded sawed off 22 caliber rifle found next door to the proposed surety's house after a police call is alarming. This appears to have involved her boyfriend on March 19th, 2012, including a person also well known to the police, and a missing seventeen year old girl from Southern Ontario. The Court finds that there is too much going on to simply ignore these people, the interrelationships and the implicit criminal lifestyle.

For the record, the Court also has taken into account, taken note of the gunshot incident at the home of the mother back in February of this year apparently over a stolen cellphone where a revolver was fired into the ceiling with children on the upper floors.

The Court is aware of the evidence that AA, the proposed surety, like her mother, BB, does not believe that her sister, the accused, is guilty. The Court recognizes that not only is the accused presumed to be innocent, but the family has the right and responsibility to keep the faith with M. Nevertheless, the Court is concerned, given the body of evidence, that a proposed surety believes the allegations to be ridiculous. There is some evidence that the family may not accept that family members may have some faults. It is particularly important for a surety to take on this responsibility, which is akin to being a jailor on the outside, with eyes wide open. Another court will deal with the question of guilt on another day. This Court is concerned with criminal behaviour in the community today, and how a plan will address those concerns.

The greater concern here is regarding any activity that may subvert the judicial process. This must be taken very seriously given the nature of the charges and the actions of the accused and her family. The respect for law and order, of which the greater community demands, appears lacking in this environment and may affect enforcement of any imposed conditions. The totality of the evidence weighs against proper enforcement.

The Crown has shown cause why the accused should be detained. The plan of supervision offered by the proposed surety is inadequate based on the issues surrounding the surety herself, her boyfriend and father of her young child, the potential for inappropriate family involvement, the lack of realism, the location and other opportunities for outside influence.

Decision

So to answer the question, "Will the public's confidence in the administration of justice be undermined by the release of this person?" The answer is yes. This is one of those cases when the tertiary ground and the secondary ground come into play. The Court is detaining M on both grounds.

Now I know that the Crown raised some issues regarding a responsible person but I will ask Mr. Hall if a responsible person is available to be proposed to the court?

MR. HALL: Not at this point.

THE COURT: Thank you. I think then we're left with a trial date.

MR. HALL: That's correct.

MS. RUPERT: Yes, uh, two issues, uh, Your Worship. If the 516 order that's currently in place could be converted into an order under section 515(12), uh, and all of those same names should continue to apply. And I believe that the return date is simply to the trial date.

MR. HALL: That's correct.

MS. RUPERT: Which is indicated on the Information now for the other two, uh, co-accused.

THE COURT: All right. The request of the Crown, the non-communication order with all of the people that were named in the previous order will continue. It will be converted now to a 515(12) order under the Criminal Code based on the detention of this person, and this young person will be remanded to her trial date.

MR. HALL: That's good. Thank you.

COURTROOM CLERK: April 8th, Number 1 Court...

THE COURT: Thank you.

COURTROOM CLERK: ...9:30.

MS. RUPERT: Thank you. That's at 9:30?

THE COURT: That's Number 1 at 9:30, yes.

MR. HALL: Is it possible to get a copy of your judgment?

THE COURT: Yes, I think probably, it probably should be done through a transcript, I would think. How about if I order a transcript?

MR. HALL: Are...a transcript? No?

COURT REPORTER: Pardon? You're ordering the transcript of the decision, Your Worship?

THE COURT: Yes.

COURT REPORTER: Okay.

(Counsels conferring)

THE COURT: In this particular case, I think that's the, the reasonable thing to do. And transcripts at this level should – they're better rather than just the notes I'm reading where a couple of times I made some changes as I realized a typo or two.

MR. HALL: Sure, fair enough.

COURT REPORTER: And the transcript will be done by the reporter that started this case, which is Miss Debbie Soucy.

MR. HALL: Right. Correct.

COURT REPORTER: I'll give it to her.

MR. HALL: Thank you.

Authorized Signature on File

JUSTICE OF THE PEACE B. MACKEY

ONTARIO COURT OF JUSTICE

Certificate of Transcript

EVIDENCE ACT, subsection 5(2)

I, Debbie Soucy, certify that this document is a true and accurate transcription of the recording of R v. Kailey Oliver-Machado in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording #0411-6-2012-11-14, Courtroom #6, which has been certified in Form 1 by Susie Eyre.

Date: ___________________

Debbie Soucy (Court Reporter): ___________________

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER

Ontario Regulation 158/03 – Evidence Act

This certification does not apply to the Reasons for Decision to which was judicially edited.

Transcript ordered: November 14, 2012 Transcript completed: December 11, 2012 Authorized Signature of B. Mackey: December 13, 2012 Ordering Party Notified: December 14, 2012