WARNING

The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Court File No.: Kitchener 14Y539; 14Y561; 14Y562

Date: 2014-07-29; 2014-08-13; 2014-08-27

Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— AND —

K(R), a young person

Judicial Officer and Counsel

Before: Justice of the Peace M A Cuthbertson

Heard on: 28 August, 2014

Reasons for Declining Bail Condition released on: 22 October, 2014

Charges:

• Theft Under $5,000, s. 334(b) CCC X 2
• Possession of Stolen Property under $5,000, s. 355(b) CCC X 2
• Obstruct a Peace Officer, s. 129(a) CCC
• Breach Recognizance, s. 145(3) CCC
• Possession of Controlled Substance (Marijuana) under 30 grams, s. 4(1) CDSA
• Breach Probation, s. 137 YCJA X 4

Counsel:

• F. McCracken, for the Crown
• C. Denbok, duty counsel for the accused

Decision

JUSTICE OF THE PEACE CUTHBERTSON:

Background

[1] K(R) appeared before this Court for a bail hearing. Mr McCracken however proposed a recommended release for the young person. Ms Denbok together with the Crown provided a joint submission as to the form of release (recognizance with a surety) and certain conditions.

[2] By way of background, the allegations essentially involved theft/possession of a shirt at a store and items from cars; lying to police about his identity; breaching curfew on his recognizance and probation orders; failing to keep the peace and be of good behaviour and possession of a small amount of marijuana.

[3] One of the jointly submitted conditions was that K(R) should "be amenable to the routine and discipline of his residence" (hereinafter "be amenable"). However, Mr McCracken very fairly submitted that his recommendation for release of the young person was not dependent upon the Court's acceptance of this condition. This condition was not only sought by both counsel but was also desired by K(R)'s proposed surety – his mother.

[4] The Court heard substantial submissions from Mr McCracken on this condition. Ms Denbok declined the opportunity to add her own submissions but agreed with the Crown's position.

[5] This Court declined to add this condition to the judicial interim release order when the young person was released. I agreed to provide written reasons as to why I declined to order that condition. What follows are my reasons.

The Law - Youth Criminal Justice Act (YCJA)

Detention before Sentencing

Application of Part XVI of Criminal Code

28. Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.

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.

Justification for detention in custody

(2) A youth justice court judge or a justice may order that a young person be detained in custody only if

(a) the young person has been charged with

(i) a serious offence, or

(ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt;

(b) the judge or justice is satisfied, on a balance of probabilities,

(i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,

(ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or

(iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in section 3 and to all the circumstances, including

(A) the apparent strength of the prosecution's case,

(B) the gravity of the offence,

(C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and

(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),

(i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,

(ii) offer adequate protection to the public from the risk that the young person might otherwise present, or

(iii) maintain confidence in the administration of justice.

Onus

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

Issues Before the Court

[6] In R. v. A. (D.), Superior Court Justice Sosna stated that a joint submission for release conditions can only be rejected if it is either unlawful or would bring the administration of justice into disrepute, by being unreasonable. The test for considering whether a condition is reasonable was set out by Justice Sosna as follows:

For a term to be considered a reasonable condition, the term must be related to a purpose which would otherwise justify the accused's detention pending trial. I cite R. v. Keenan (1979), 57 C.C.C. (2d) 267.

Again, the terms imposed on bail release must have a related purpose which justifies their imposition. Without a purpose, the terms are unreasonable and thus arbitrary. Imposing unreasonable or arbitrary terms would bring the administration of justice into disrepute.

R. v. A. (D.), 2014 ONSC 2166, paras 12, 17

(see also R. v. Findlay, [2004] O.J. No. 3263 (Ont S.C.))

[7] Therefore the two legal tests regarding the "be amenable" condition are:

1. Is the condition unlawful?
2. If added to K(R)'s judicial interim release order, would the condition be unreasonable or arbitrary, thereby bringing the administration of justice into disrepute?

Analysis

4.1 Is the condition unlawful?

[8] Mr McCracken provided case law where the Ontario Court of Appeal and various Superior Court Justices have used this term. (see R. v. R.D., 2010 ONCA 899; R. v. Akdemir, 2010 ONSC 6955; R. v. Allen, [2013] O.J. No. 6233; R. v. Francis, [2010] O.J. No. 6291; R. v. Jenkins, [2011] O.J. No. 3517; R. v. Kotaba, [2009] O.J. No. 4439; R. v. Malik, [2012] O.J. No. 6642; R. v. Pierce, [2010] O.J. No. 4925).

[9] In his view, if these courts have used this term then it must be lawful. I agree.

4.2 If added to K(R)'s judicial interim release order, would the condition be unreasonable or arbitrary, thereby bringing the administration of justice into disrepute?

[10] In his 2010 book, The Law of Bail in Canada, Mister Justice Gary Trotter considered the issue of what constitutes reasonable bail as set out in s. 11(e) of the Charter. He quoted from Pearson where Lamer, C.J.C. said:

"Reasonable bail" refers to the terms of bail. Thus the quantum of bail and the restrictions imposed on the accused's liberty while on bail must be "reasonable".

R. v. Pearson (1992), 17 C.R. (4th) 1 (S.C.C.)

Gary Trotter, The Law of Bail in Canada, 3rd Edition, (Carswell: Toronto 2010), pp 6-1

[11] Justice Trotter also commented on the principle of restraint in bail conditions. He stated:

… the imposition of conditions must be approached very cautiously. There may be a temptation at bail hearings to right all wrongs and intervene in a substantial way in the accused person's life.

He continued:

Thus, in the determination of what conditions are appropriate, the proper role of bail conditions and their relationship to the criteria for release must be kept in mind as a check against overly intrusive conditions.

Gary Trotter, The Law of Bail in Canada, 3rd Edition, (Carswell: Toronto 2010), pp 6-24, 6-25

[12] Justice Trotter also provided guidance on the imposition of conditions which the justice considers desirable under s. 515(4)(f) of the Criminal Code. He stated:

While the language of this paragraph is broad, the range of permissible conditions is not unlimited. Conditions may not be imposed gratuitously; they must be imposed for the purpose of giving effect to the criteria for release.

Finally, His Honour set out the need for understandable and precise conditions:

The most important feature of conditions of release is that they must be certain. That is, they must be understandable to the accused. This is of great importance because, as discussed in Chapters 11 (The Revocation of Bail), 12 (Bail Related Criminal Offences) and 13 (Forfeiture Proceedings), a condition that is insufficiently precise will not be capable of enforcement.

Gary Trotter, The Law of Bail in Canada, 3rd Edition, (Carswell: Toronto 2010), pp 6-45

[13] The need for understandable and precise bail conditions for young persons was addressed by Mister Justice Pritchard in R. v. J.A.D. when that Court considered the clarity of a bail condition similar to the "be amenable" condition. That condition stated "Follow the rules and regulations of Dales House and the lawful instructions of the house". The Court held:

While the learned trial judge may have found that the particular instructions were not arbitrary, such a determination does not settle the real issue as to whether the condition in the Undertaking is nevertheless vague or represents an improper delegation of authority.

There is no evidence that J.A.D. understood that failure to go to his room and to stay there when instructed to do so by the staff of Dale's House could result in a criminal conviction. And, it is beyond my comprehension that any teenager or pre-teen would ever understand or expect that a failure to go to his or her room when requested by a parent or other supervising adult could result in criminal sanctions.

R. v. J.A.D., 1999 SKQB 262, paras 9, 11

[14] The issue of vague bail conditions has also been addressed in recent papers from the John Howard Society and the Canadian Civil Liberties Association. I do not consider either to be an "authority" on which I can rely for legal guidance. However, I do accept that they are both organizations with an interest and involvement in the criminal justice system such that their comments are noteworthy.

The John Howard Society stated:

Courts should not be in the business of mandating self-improvement for its own sake, or crafting bail conditions so vague or logically unconnected to the original charge and primary and secondary grounds as to invite breach.

According to legislation, bail has to be reasonable, but it should also be well-reasoned.

Reasonable Bail?, John Howard Society of Ontario, September 2013, pp 11, 17

The Canadian Civil Liberties Association commented:

Many regularly imposed bail conditions are vague, making it difficult for accused to comply and putting a significant amount of discretion in the hands of sureties and the police. The requirement to "keep the peace and be of good behaviour" or "be amenable to the rules and discipline of the home" can ostensibly encompass a wide range of behaviours. An accused person is unlikely to know what behaviours will contravene these conditions, and both restrictions are unlikely to be related to the offences before the court or the enumerated grounds for detention. Overly broad or vague criminal provisions violate s 7 of the Charter.

Courts have found that conditions such as "be amenable to the rules of the house" and other similarly vague directions are unconstitutional. Individuals will often not have the means to challenge these conditions independently, and courts have ruled that many conditions may not be legally challenged at trial due to the rule against collateral attack on judicial orders.

Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, Canadian Civil Liberties Association and Education Trust, July 2014, pp 55

[15] In 2012, the Ministry of the Attorney General established a group of experts, including representation from the judiciary, to consider bail issues in Ontario. When reviewing the increasing number of administration of justice charges resulting from breach charges, it emphasized the need for reasonable and necessary bail conditions. The experts stated:

Judicial officers, Crown Attorneys, police, defence counsel and duty counsel must be diligent to ensure that conditions of bail applied to accused persons' Judicial Interim Release Orders are reasonable, necessary, and directly related to:

• The circumstances of the alleged offence; • The circumstances of the accused person; • The primary, secondary and tertiary grounds; and • Mandated sections of the Criminal Code

Bail Experts Table Recommendations, Justice on Target, Ministry of the Attorney General of Ontario, August 2013, pp 21

[16] In a presentation to the Fourth National Symposium on Criminal Justice, Law Professor Martin L. Friedland spoke of the problems of conditions unrelated to the grounds expressed in the Criminal Code. While his comments concerning the reverse onus do not apply to a young person under recent changes to the Youth Criminal Justice Act (YCJA), he does articulate the need for limited and only necessary conditions. He said:

Another problem is that there are usually many conditions applied to release, and breach of a condition is not only an offence under section 145 of the Criminal Code, it is also a reverse onus offence. This again increases the number of persons being held in custody pending trial. There are many such administration of justice charges in the system. Can we not find a way of cutting down on unnecessary conditions and charges, such as by limiting conditions to those that clearly relate to whether the accused will show up for trial or will engage in criminal conduct, and limiting further criminal charges to serious breaches of conditions?

The Bail Reform Act Revisited, Fourth National Symposium on Criminal Justice, Martin L. Friedland, January 2012, pp 321

[17] At the Justices of the Peace Spring Educational Conference 2014, Law Professor Nicholas Bala presented a paper on bail for young persons. Professor Bala, after noting Justice Trotter's comments (see above) on the need for restraint when imposing bail conditions, stated:

Accordingly, conditions for release should be carefully crafted for the purposes defined in s. 29(2)(c):

i. To ensure attendance in court; ii. To prevent reoffending; or iii. To promote confidence in the administration of justice.

If a youth is released into the community as a result of a judicial interim release hearing, the court should be satisfied that any conditions imposed are realistic and necessary. Sometimes parents, social workers or group home operators will want a judge at a pre-trial release hearing to impose detailed behavioural conditions on a youth, in regard to curfews, school attendance, participation in counselling, or "following house rules". Even if the youth is originally charged with a relatively minor offence, the conditions of release may place strict limits on behaviour for potentially lengthy periods until final resolution of a case. Given the circumstances and temperament of some youths, complying with strict behavioural conditions may be unrealistic. While a failure to comply with the conditions may not pose a threat to the community, if there are breaches of the conditions of release, this may result in further charges being laid for these breaches. The courts tend to view breach charges seriously as they may be considered to show disrespect for the justice system and undermine the administration of justice. Thus, a relatively minor initial charge, which may result in a discharge or even an acquittal, or that may be withdrawn, has the potential to result in a spiralling series of administration-of-justice charges and serious involvement with the youth justice system.

Nicholas Bala, Judicial Interim Release & Detention Under the Y.C.J.A, March 24, 2014, pp 21

[18] Having considered the above noted authorities and their expressed concerns over vague or behaviourally based conditions, I now consider their application to K(R)'s bail matter. Additionally Mr McCracken and the Court discussed the meaning of "be amenable to the routine and discipline of the residence". Mr McCracken acknowledged that the condition is subject to considerable interpretation. He agreed that the condition itself provides no guidance for the surety or the police as to what might be considered to be reasonable rules which the surety could place on her son. Mr McCracken submitted that it may even require a judge to interpret the condition, at a trial of a breach charge.

[19] I agree the condition provides no clarity or precision as to what constitutes a reasonable rule either for the surety or the police. The lack of precision is so great that the issue may ultimately have to be determined by a judge.

[20] Logically then, there is nothing precise for K(R) to understand the required limits of his actions under that condition. Put another way, K(R) has no way of precisely knowing what he must do to not violate the condition. It is at best, a moveable target based on the potentially changing views of his surety, who determines the routine and discipline of the residence.

[21] Therefore, the need for precision set out by Justice Trotter is not met in the "be amenable" condition. I therefore adopt the logic of Pritchard J. in J.A.D. and find the condition to be vague.

[22] It is also not lost on this Court that it is possible K(R)'s liberty could be adversely affected while the police consider or a judge determines what the condition actually means and what rules made under its authority by the surety are reasonable.

[23] As well, the condition meets neither primary nor secondary ground concerns under s. 29(2)(b)(i) and (ii) of the YCJA. There is no nexus between the allegations of the offences and the condition. While his mother wants the condition because she is frustrated with his conduct, that in and of itself does not justify the imposition of a condition which is desired only to moderate his behaviour. This is exactly the circumstance which Professor Bala cautioned against (see above).

[24] It is trite law to say that K(R)'s mother may revoke her status as surety under s. 766 of the Criminal Code, at any time. However, it is worth noting that this right to revoke provides her with enormous authority over her son, which this Court made very clear to him. It is not obvious why cloaked with this authority, the surety needs the "be amenable" condition.

[25] What is obvious is that a breach of the condition may result in a charge for an action that the young person could not reasonably foresee to be criminal behaviour. This is the message of Pritchard J. in J.A.D.

Conclusion

[26] This Court acknowledges that Justice Sosna's test reinforces that a joint submission must be given considerable deference. The rejection of a joint submission on bail conditions should not be undertaken lightly.

[27] However, I see no valid reason for the imposition of the condition. K(R)'s conduct at home had no nexus to his alleged offences, all of which are purported to have occurred elsewhere. It is a condition not related to any purpose which would otherwise justify his detention pending trial, pursuant to s. 29(2) of the YCJA.

[28] In these circumstances, the condition "be amenable to the routine and discipline of the residence" is vague and unnecessary. It is therefore, unreasonable and arbitrary.

[29] In my view, had the condition been added to K(R)'s judicial interim release order it would have brought the administration of justice into disrepute. Therefore, I rejected the joint submission and declined to add the condition.

Released: October 22, 2014

Signed: "Justice of the Peace M A Cuthbertson"

Appendix A

215 - The case law is not clear what behaviour will constitute a breach of the condition to keep the peace and be of good behaviour. Some courts have indicated that the behaviour must breach a substantive law: R v Grey (1993), 19 CR (4th) 363 (Ont Ct (Prov Div)) and R v D(R), [1999] NJ No 228, 138 CC (3d) 405 (CA). Others have found a breach where no substantive law was contravened: R v Stone (1985), 22 CCC (3d) 249 (Nfld CA); R v Jefferson, 2012 NSPC 3; R v S(S), [1999] NJ No 230, 138 CCC (3d) 430 (CA). Being charged with breaching the bail condition to "keep the peace and be of good behaviour" can trigger the reverse onus provisions in s 515(6)(c) as well as potentially result in a revocation of bail under s 524. As a result, a charge for breach of this term can have serious consequences. In R v S(S), a youth was convicted of a breach of this probation condition as a result of his disruptive behaviour in his classroom at school. In R v Grey, "substantive law" was defined as a contravention of a federal, criminal, provincial, or municipal law. On a literal reading, this would encompass behaviour such as jay walking. The notion that these kinds of behaviours could lead to breach charges, and could result in a reverse onus, s 524 bail proceeding where an accused would be at risk of being detained pending trial, raises constitutional concerns.

216 - "Keep the peace and be of good behaviour" was not imposed as a condition of bail for this reason in R v K(S), [1998] SJ No 863 (Prov Ct) and R v B(AD), 2009 SKPC 120. See also Justice Gary T Trotter, The Law of Bail in Canada, 3d ed (loose-leaf) (Toronto: Carswell, 2010) at 6–41.

217 - R v Levkovic, 2013 SCC 25.

218 - R v CCH, [1994] NSJ No 334 (NS Fam Ct); R v D (JA), 1999 SKQB 262; R v F(A) (1990), 74 OR (2d) 107.

219 - See, for example, R v Reed (1994), 91 CCC (3d) 481 (BCCA); R v Lee. The rule applies even where the challenge to the validity of a court order takes on a constitutional flavor: R v Domm (1996), 111 CCC (3d) 449 (Ont CA) at 458 (leave to appeal refused [1997] SCCA No 78 (QL)).