WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
Date: May 6, 2014
Court File No.: Newmarket 14-134, 14-140, 14-174
Between:
Her Majesty the Queen
— AND —
S. L-M., a young person
Before: Justice Joseph F. Kenkel
Heard on: April 29, 2014, May 6, 2014.
Reasons for Judgment released on: May 6, 2014.
Counsel:
- Ms. Courville, Mr. Lerner — counsel for the Crown
- Ms. Levin — counsel for the accused S. L-M.
KENKEL J.:
Introduction
[1] SLM was charged with Robbery and Forcible Confinement in relation to a robbery of a 13 year old in a library. He was on release for that charge to March 5th 2014 when it's alleged he failed to comply with that bail by associating with one of his co-accused and committing a further offence. When the police went to arrest him at school he wasn't there. He wasn't at home when they spoke with his mother but did surrender himself the next day.
[2] SLM was granted a further bail. On March 26th, after midnight York Regional police responded to a robbery call at a motel in Richmond Hill. The motel room had been invaded by two men. One was armed with what appeared to be a handgun. They robbed the occupant and fled on foot. The York Regional Police helicopter, ERU and canine units all responded quickly. The helicopter was on scene within 11 minutes of the initial call.
[3] The police helicopter located two men hiding on a deck in the back of a residence. The accused youth and an adult male were arrested. The property taken in the robbery was recovered and returned to the complainant. Parts of a handgun were recovered. SLM is now facing further charges of Armed Robbery, Forcible Confinement, Failing to comply with the curfew condition on his prior bail and failing to comply with the weapons prohibition condition.
[4] The accused youth was ordered detained at his bail hearing. This is a hearing de novo as provided for by s.33(1) of the Youth Criminal Justice Act (YCJA).
Crown Position
[5] The Crown submits that while SLM's mother is doing her best, she is plainly unable to supervise her son. He's been found to be absent from school without her knowledge. She doesn't know the people he is associating with and despite her efforts she has been unable to monitor his compliance with bail conditions or prevent him for committing further offences.
Defence Position
[6] The defence points out that the initial robbery charge has now been resolved by way of diversion. The accused therefore has no prior record. His mother now has the assistance of her daughters and is willing to supervise strict terms of release. While the sureties hope that the accused would be given permission to attend school and perhaps work, they are willing to supervise house arrest if necessary.
Analysis
[7] The reverse onus provisions of the Criminal Code no longer apply to youth court proceedings. The burden is on the Crown to show cause if they are seeking detention YCJA s.29(3).
[8] Both counsel agree that the charges before the court are "serious offences" within the meaning of YCJA sections 2 and s.29(2)(a)(i). This court must therefore determine whether the Crown has proved on the balance of probabilities that the conditions for detention under s.29(2)(b) have been met.
[9] I'm satisfied that the court could craft terms of release that would meet the primary ground concerns as expressed in YCJA s.29(2)(b)(i). Although the new offences alleged are very serious and the allegations include the use of a firearm, the accused is 16 with no prior youth court record.
[10] Despite the serious nature of the allegations, given the lack of a prior record and the age and circumstances of the young person I'm not satisfied that this is one of the rare cases where detention of a youth would result on the tertiary grounds as expressed in YCJA s.29(2)(iii). See: R. v. RD 2010 ONCA 899.
[11] That leaves the core issue of whether detention is necessary on the secondary grounds as expressed in YCJA s.29(b)(ii). Has the Crown proved that detention is necessary for the protection or safety of the public, or that there is a substantial likelihood that the accused will commit a "serious offence" if released?
[12] The evidence shows that to date SLM has not abided by the terms of past court orders, has not been amenable to surety supervision, and poses a risk of committing a serious offence if released.
[13] To address these concerns the defence proposes a release to the same surety, his mother, with stricter conditions. The difference this time will be that she will have the assistance of her two student daughters who have returned home to live with her.
[14] I don't question the good faith of the mother or the two young sisters who testified. All three women were intelligent, impressive witnesses. SLM's mother has a good career as a nurse and both of her daughters have graduated high school and are in college programs.
[15] All three have cautioned the accused about his choices in friends and staying away from trouble, repeated after the various charges, but the evidence shows that despite their belief that he listens to them, SLM pays little attention.
[16] None of them knew who his current friends were nor could they identify the circumstances which have led their brother into such serious trouble.
[17] On the night of the alleged armed robbery, SLM was arrested far away from home, two and a half hours after curfew on his outstanding bail. His mother and surety did not know where he was. She testified that the older sister was supposed to supervise the accused after 10pm. Even with the assistance of the older sister, nobody knew where the accused was, he was in violation of the bail and nothing was done.
[18] The evidence shows that to grant the young person a release with permission to attend school or work away from direct surety supervision would carry a certainty of breach, would pose a threat to public safety including the young persons around him, and would carry a substantial risk that the accused would commit further serious offences.
[19] The only possible plan of surety release at this point would be house arrest. The question then becomes whether these sureties are prepared and able to supervise such onerous terms.
[20] I'm mindful that the sisters' availability is likely limited. They're both home from college for the summer and both have limited work at the moment but that could quickly change and likely will change over the course of proceedings that might take a year or more.
[21] It's not certain whether the accused would obey such strict conditions. He's not listened to his mother or his sisters in the past. He did not testify and there's no evidence that he's prepared to be bound by such strict conditions or live within the strict circumstances of house arrest. I'm very concerned that the only possible release in these circumstances asks too much of the family.
[22] Having said that, the accused has no record and SLM's mother is prepared to sign a surety release in a significant amount. The family is willing to take on that risk and enforce house arrest terms. If SLM does not obey the conditions I'm satisfied that the sureties will contact the police immediately as they stand to lose their life savings if they don't.
[23] In these circumstances I'm satisfied that a surety release in a significant amount on house arrest terms would meet the concerns on the secondary grounds.
[24] SLM will be released on a recognizance in the amount of $95,000.
[25] Given the evidence heard, I'll name the mother as surety in the amount of $75,000 and both sisters will be named as sureties in the amount of $10,000 each with the following conditions:
Conditions of Release
Reside with your mother at G[…] Drive, North York
Notify the officer in charge Det. Wagniere or designate badge #1145 at 2 District, York Regional Police of any change in your mother's address 48 hours in advance of any move.
Remain in your residence at all times except:
- To attend court in the direct company of a surety
- To attend medical appointments in the direct company of a surety
- To attend religious services in the direct company of your mother
- To attend your lawyer's office in the direct company of a surety
- For direct travel to and from appointments permitted by this order
- Unless you are in the direct company of your mother
Not to contact or communicate in any way directly or indirectly with T.P.
Not to attend at the Emerald Isle Hotel 8700 Yonge Street in Richmond Hill
Not to contact or communicate in any way directly or indirectly with M.D., or M.L.R. or R.T. or anyone known to you to have a youth court or criminal record.
Not possess any weapons as defined by the Criminal Code
Not possess any firearms or any permits to acquire firearms
Released: 6 May 2014
Signed: Justice Joseph F. Kenkel