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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2018-05-22

Court File No.: Ottawa 18-Y8074

Parties

Between:

Her Majesty the Queen

— and —

C.M., a young person

Bail Application

Before: Justice P.K. Doody

Heard on: May 16, 2018

Reasons for Decision Released: May 22, 2018

Counsel

Tara Dobec — counsel for the Crown

Cedric Nahum — counsel for the defendant

Decision

DOODY J.:

Introduction

[1] This is my decision on a bail application by a young person (the defendant) charged with four offences alleged to have been committed on March 22, 2018:

(a) possession of a firearm while prohibited from doing so by an order under s. 51 of the Youth Criminal Justice Act (the YCJA);

(b) and 3 counts of breach of a youth sentence imposed March 20, 2018 by

(i) failing to keep the peace and be of good behaviour,

(ii) failing to report to a youth worker the day of the sentence and after that at all times and places designated by the youth worker, and

(iii) failing to keep probation informed of where he was residing and with whom he was residing.

[2] The youth sentence, which included a term of probation, was imposed on March 20, 2018, 2 days before the offences with which the defendant is now charged.

[3] The defendant turns 18 tomorrow, on May 23, 2018.

Bail under the YCJA

[4] The Crown has the onus of establishing, on a balance of probabilities, that the defendant should be detained pending his trial. It relies on only the secondary ground – that is, in the words of s. 29(b)(ii) of the YCJA:

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.

[5] The bail provisions of the YCJA differ from those of the Criminal Code in a number of significant ways.

[6] The secondary ground refers to a substantial likelihood that the defendant will, if released from custody, commit a "serious" offence, whereas the Criminal Code parallel provision, s. 357 (10(b)), refers to a substantial likelihood that the defendant will commit a "criminal" offence.

[7] "Serious offence" is a defined term in the YCJA. It is defined by s. 2 to mean:

an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more.

[8] Sub-section 29(1) provides that a young person shall not be detained in custody prior to being sentenced "as a substitute for appropriate child protection, mental health or other social issues."

[9] Furthermore, a young person may, by s. 29(2)(a), be detained only if the young person has been "charged with a serious offence, or an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt."

[10] A "pattern" under the comparable provisions of s. 39 of the YCJA which deals with sentencing has been defined by the Supreme Court of Canada to mean either two prior convictions that are strikingly similar, or at least three prior convictions. (R. v. C. (S.A.), 2008 SCC 47, 233 C.C.C. (3d) 417 (S.C.C.)) As Justice Trotter wrote in his text The Law of Bail in Canada (3d edition, 2017), there is no reason to think that this approach will not be followed under s. 29(2) of the Y.C.J.A.

[11] Even if the conditions set out in the primary, secondary, or tertiary grounds are established, s. 29(c) requires that, before a judge or justice can detain the young person on the secondary ground, he or she must be satisfied no conditions of release would "offer adequate protection to the public from the risk that the young person might otherwise present."

[12] Finally, the legislative scheme of the YCJA as a whole has an impact on youth bail. As Wakefield J. held in R. v. P.J., 2013 ONCJ 726 at paragraph 28, detention on any basis should be imposed only in rare circumstances. The YCJA favours release, even for those charged with very serious offences.

[13] Rosenberg J.A. wrote on behalf of the Court of Appeal in R. v. R.D., 2010 ONCA 899, [2010] O.J. No. 6111 at paragraph 48, that the rationale favouring release of a young person pending trial is strongest where detention is sought on the secondary ground. In that case, which dealt with the tertiary ground, he also wrote at paragraph 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.

[14] This was written before the 2012 amendments to the YCJA which slightly altered the wording of the statement of principles in s. 3. I agree with Wakefield J., who wrote at paragraph 28 of R. v. P.J. that it remains applicable.

[15] Finally, the principles reiterated by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, with its emphasis on the constitutional presumption of innocence and its corollary of the constitutional right to bail, are equally applicable to bail applications under the YCJA.

Evidence Before Me

[16] The defendant was made subject to a youth probation order on March 20, 2018. The conditions included those set out in the charges before me.

[17] Two days later, on March 22, 2018, the defendant is alleged to have posted a picture on Facebook in which he was holding what appears to be a handgun pointed at the camera. Two pictures from Facebook were entered into evidence. In one, the face of the person holding the alleged handgun is completely obscured. In the other, the person is wearing the same clothing as in the first picture, and his face is partially obscured. The portion which can be seen looks much like the defendant. The heading to the picture reads "Hollow tip bitch this no. 38".

[18] The alleged handgun was not seized. The picture shows what looks to be a handgun, but it is slightly out of focus. The entire device cannot be seen.

[19] A psychiatric report prepared for the March sentencing by Dr. Anthony Adiele of the Family Court Clinic at the Royal Ottawa Mental Health Centre was filed. It is dated December 4, 2017. Dr. Adiele's opinion is that the defendant suffers from mental and behavioural disorders due to multiple drug use – dependence syndrome. He also suffers from attention deficit and hyperactivity disorder and oppositional defiant disorder and conduct disorder from childhood. He is emotionally unstable and has antisocial personality traits.

[20] Dr. Adiele noted that the defendant has had a "disorganized lifestyle punctuated with frequent moves to temporary accommodations." The Children's Aid Society has been involved with him since infancy. He became a Crown ward in February 2016 after being taken into care two years before that.

[21] Dr. Adiele notes "The only persistent thing in his teenage life appears to be psychoactive substance use, which has been his ever-present source of recourse." He told Dr. Adiele that he started to use illicit drugs when he was 13, and his drug use continued largely unabated to when he met Dr. Adiele. He had completed a drug rehabilitation program just before meeting the psychiatrist, but Dr. Adiele noted that he was still actively using a number of illicit drugs or continuing to suffer from the effects of their withdrawal. He notes that the defendant has made it clear that he does not like authority. He recommended a compulsory residential or custodial treatment regime with constant monitoring and treatment.

[22] Philippe Hiltz-Laforge has been the defendant's CAS social worker since November 2017. He has been a social worker with the CAS for 13 years.

[23] He testified that the CAS was unable to find a residence or treatment program for the defendant. He has been refused at a number of group homes because of his behaviour. There are no group homes for 18 year olds with the CAS, and he is about to turn 18.

[24] Since November, when Mr. Hiltz-Laforge began to work with the defendant, he has lived in a number of different places. He was originally living with his mother. That did not go well. He then rented a basement room from a couple with a young child. They made him leave when they found cocaine in the home. He has been banned from a young men's shelter downtown. He was refused by the Youth Services Bureau. The John Howard Society street program refused to offer him services because of his past violent behaviour. He has been banned from a number of hotels. He has a CMHA worker who he never sees. Mr. Hiltz-Laforge has continued to search for suitable accommodation, including supported housing with the City which is partially supervised, but that is not yet in place.

[25] Mr. Hiltz-Laforge testified that the defendant was the most drug addicted youth he had ever encountered in his work. He uses heroin, crystal meth, Xenex, cocaine, and a variety of other opiates. He has told Mr. Hiltz-Laforge that he supports his habit by selling drugs. The defendant went through a residential treatment program in Thunder Bay last fall before being assessed by Dr. Adiele, but he spent the last week of the program in the detoxification unit so he could complete it. He told Mr. Hiltz-Laforge that he used crack cocaine while on that program. After his release on probation 2 months ago, he began receiving a prescribed heroin replacement drug as part of a recovery program.

[26] Mr. Hiltz-Laforge testified that the defendant was initially homeless after his release on probation. About three weeks prior to the hearing, Mr. Hiltz-Laforge and the defendant agreed to a plan. He and the defendant met with the defendant's probation officer at the Youth Services Bureau drop-in centre. He made sure the defendant had his medication. They took him to the Ottawa Withdrawal Management Center. He was asked to leave within 36 hours. His mother then took him to live with his grandparents. He stayed there for 15 or 16 days. Nine days before his arrest, he was asked to leave by his grandparents because he stole beer from them.

[27] Mr. Hiltz-Laforge was still hopeful that he could get the defendant into a program at the Royal Ottawa Hospital, which could offer weekday residential programs, but he would need a place to live on weekends.

[28] Mr. Hiltz-Laforge testified that if the defendant was going to go to a rehabilitation program "we need to get our ducks in a row." He also testified that his major concern is that if the defendant is released today he will overdose and possibly die. He testified "as his worker I think he needs a period of detention whether in hospital or not where he can get sober and diagnosed properly and get on psychotropic meds so if he is released he is not released to the street."

[29] Genevieve Lescault is the defendant's probation worker. She was assigned to him after he was put on probation on March 20, 2018. She testified that when the defendant was first released, he was released to the street and it took a couple of weeks for her to connect with him. She saw him three times between then and his departure from his grand-parents' residence some 9 days before he was arrested. She last saw him a week and a half before the bail hearing. His next scheduled reporting date was the date of the bail hearing, when he was in custody. She testified that he never told her where he was living.

[30] She testified that the defendant had told her he was willing to access drug treatment but she had been unable to find any service willing to take him. The defendant did meet with a counsellor from child and family services once, but missed his second appointment and then saw her again the week before he was arrested. She has also been looking for housing for him but to date has been unsuccessful. She said that he had been accepted at a non-residential treatment program and was on the waiting list for an intensive supervision support program. She testified that if the defendant was detained she and Mr. Hiltz-Laforge would work together with their superiors to help the defendant get access to services which to date they had been unable to obtain for him.

[31] The defendant has a lengthy record of offences under the YCJA. It began in 2014 and continued until March 2018, when he was convicted of robbery, a breach of a bail undertaking, a failure to attend court, and simple possession of a Schedule I drug. The March 2018 convictions were for offences which occurred on April 9, 2017.

[32] The defendant has been convicted 3 times for assault with a weapon, once for robbery, and once for simple assault. He has been convicted twice for mischief (damage to property) under $5,000, once for theft under $5,000, once for possession of proceeds of crime, and once for uttering threats. He has been convicted 10 times for breach of a court order or bail undertaking or recognizance, and once for failure to attend court.

[33] As part of the robbery conviction in March 2018, he was prohibited under s. 51 of the YCJA from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

Analysis

[34] The defendant meets the requirements of s. 29(2)(a) to be detained pending trial. He has been charged with a "serious offence" because the offence of possession of a firearm in breach of a s. 51 order and s. 117.01 of the Criminal Code carries a maximum penalty of 10 years if proceeded with by way of indictment. He also has a history that shows a pattern of findings of guilt.

[35] The issue is whether the Crown has satisfied me on a balance of probabilities that his detention is "necessary for the protection or safety of the public … having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence."

[36] I have significant concerns with the strength of the Crown's case on the substantive offence of breach of a s. 51 prohibition order. He has been charged with possessing "a firearm, namely a handgun". The evidence consists of a photo of a person holding what appears to be a gun on his Facebook page, together with the heading "Hollow tip bitch this no. 38".

[37] For the purposes of my analysis, I am assuming that the evidence will be sufficient to identify the defendant as the person holding the device. While the photograph is not perfect, the portion of the face that can be seen looks very much like the defendant, and it has been posted on what I have been told is the defendant's Facebook page.

[38] The device is not clearly shown. The photo is not sharp. Not all the device can be seen.

[39] In order for the defendant to be convicted of this offence, the Crown must establish beyond a reasonable doubt that the device is capable, either as it was at the time of its possession or by adaption or assembly, of being loaded and fired so as to have the potential for causing serious bodily harm. (R. v. Covin and Covin, [1983] 1 S.C.R. 725) The Crown bears the burden of proving that the weapon in question meets this definition. That burden can be met by direct evidence or circumstantial evidence from which the appropriate inference may be drawn. (R. v. Charbonneau, [2004] O.J. 1503 (C.A.), R. v. Osiowy, (1997), 1997 ABCA 50, 113 C.C.C. (3d) 117 (Alta. C.A.), R. v. Roberts, (1998), 125 C.C.C. (3d) 471 (N.B.C.A.).)

[40] In this case, there is no direct evidence. The Crown does not have the device in issue. There is only circumstantial evidence.

[41] Crown counsel submitted that it may be possible for an expert to look at the photograph and give the opinion that the device is a firearm. I have my doubts about that. I would be surprised to learn that an expert could determine not only that a device looks like a firearm, but that it is in or could shortly be put in working order. The difficulty would, in my view, be exacerbated by the poor quality of the photo. While the heading over the photo adds some weight to the evidence, I have real concerns as to whether the Crown will be able to prove that the circumstantial evidence establishes that the only reasonable inference is that the device in the photograph is a firearm. That is what is required by R. v. Villaroman, 2016 SCC 33, 2016 1 S.C.R. 1000.

[42] The Crown submitted that the "serious" offence that there was a substantial likelihood the defendant would commit if released (as required by s. 29(2)(b)(ii)) was drug trafficking. Drug trafficking is a "serious offence" as defined by the YCJA, since it attracts a maximum sentence of life imprisonment. In support of this, Crown counsel noted the admission of the defendant to Mr. Hiltz-Laforge that he sold drugs to support his drug addiction.

[43] I note that the defendant has never been convicted of trafficking in drugs. If he did traffic in drugs, I conclude that he would be only what is referred to as a "small-fry" drug trafficker. The Supreme Court of Canada noted at paragraphs 64 to 65 of R. v. Pearson, [1992] 3 S.C.R. 665, that even adult "small-fry" drug dealers would normally have no problem obtaining bail. This is, in my view, because while "small-fry" drug dealers are part of a system which does cause serious issues of public safety, their activities by themselves do not raise such issues.

[44] The offences of breach of a youth sentence with which the defendant is charged cannot be said to be on the serious end of such offences. The failing to keep the peace charge stands and falls with the firearm possession charge. Although he is charged with failing to report and failing to keep his probation officer informed of where he was living, he did meet with his probation officer three times in four weeks, during a two month period when he was out of custody.

[45] The secondary ground requires that detention is necessary for the protection and safety of the public. It is clear that the defendant will be safer if he is detained. I also conclude that if he is released he will probably commit the criminal offence of possession of a controlled substance and perhaps trafficking in such a substance. I cannot conclude, only on the basis of his admission that he has engaged in drug trafficking in the past and his addiction to drugs, that there is a substantial likelihood that he will continue to do so.

[46] In any event, that is not the test. Public safety is. Chief Justice Lamer wrote on behalf of the majority of the Supreme Court of Canada in R. v. Morales, [1992] 3 S.C.R. 711:

[D]anger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime.

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous.

[47] In the particular circumstances of this case, I am not satisfied that detention is necessary for the protection or safety of the public. In coming to this conclusion, I have taken into account the weakness of the Crown's case on the only "serious offence" charged against this young person; his absence of a record for drug trafficking, the "serious offence" which the Crown alleges there is a substantial likelihood of him committing if he is released; the low level trafficking which I have concluded he may engage in (but that I am not convinced there is a substantial likelihood of), and the general policy of the YCJA which mandates detention only in rare circumstances.

[48] I have no doubt that the defendant's CAS worker and probation officers acted with the best of intentions in seeking the defendant's detention. I share their concerns. But I have concluded, after much thought, that the purpose of detention would be to serve as a substitute for appropriate child protection or mental health measures. That is not the purpose of pre-trial detention under the YCJA.

Decision

[49] The defendant will be released on his entering into an undertaking before me to notify his probation officer, Genevieve Lescault, or her designate, of his place of residence and report to the Ottawa Police Service between 7 a.m. and 7 p.m. on Friday, May 25, 2018 and each Friday thereafter.

Released: May 22, 2018

Signed: Justice P.K. Doody