ONTARIO COURT OF JUSTICE

CITATION: R. v. K.K., 2018 ONCJ 751

DATE: 2018 10 26

COURT FILE No.: Brampton 3111 998 18 698, 953, and 1051

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

K.K.

Before Justice G.P. Renwick

Heard on 22 and 25 October 2018

Reasons for Judgment released on 26 October 2018

D. D’Iorio............................................................................................... counsel for the Crown

M. Owoh................................................................................. counsel for the defendant K.K.

RULING ON JUDICIAL INTERIM RELEASE

RENWICK J.:

INTRODUCTION

[1] K.K. is a young person charged with offences arising out of three bank robberies, alleged to have been committed with an imitation firearm, in addition to three sets of charges relating to allegations of non-compliance with an undertaking to an officer and two prior judicial interim release (“bail”) orders, the most recent of which also includes a charge of obstructing a peace officer by using a false name.

[2] The prosecutor opposes bail on the basis of the modified[^1] secondary and tertiary grounds found in ss. 29(2)(b)(ii) and (iii), respectively of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”), and submits that there is no possible release order that would offer adequate protection to the public from the risk this youth presents or that would otherwise maintain public confidence in the administration of justice.

[3] Counsel for the young person submits that the release plan that has been proposed is appropriate to respond to the prosecutor’s concerns because it would be the most restrictive bail that the young person has experienced by virtue of having two sureties named to provide all day supervision. Counsel adds that the public would not be put at risk by the release of the young person because there is no evidence that suggests that there is a substantial likelihood of the commission of a serious offence if the young person were released on bail. The fact is, the young person has no prior youth court record and he successfully spent almost four months on an extremely restrictive bail before he was allegedly caught trespassing and smoking marihuana. These alleged offences are not “serious” as that term is defined in s. 2 of the Act. Moreover, there is no proof that during his bail, the young person put any member of the public at any risk of harm as contemplated by s. 29(2)(b)(ii).

[4] In terms of the prosecution’s tertiary ground concern, counsel for the young person submits that there are no “exceptional circumstances,” as that term is used in s. 29(2)(b)(iii) such that detention is necessary to maintain confidence in the administration of justice.

[5] I will deal with this matter under the following headings:

-general principles;

-evidence;

-law;

-analysis; and

-conclusion.

GENERAL PRINCIPLES

[6] A bail hearing under the YCJA begins with the presumption that a young person should be released on bail unless it is established on a balance of probabilities that detention is necessary because the conditions in ss. 29(2)(a), (b), and (c) have been met. This presumption of release reflects the principles of a separate judicial process from adult offenders, reduced moral culpability of young persons, the dependency of young persons, and their reduced level of maturity and development as found in ss. 3(1)(b) and (c) of the YCJA.

[7] The onus of establishing that the preconditions for and the necessity of detention exist rests entirely with the prosecution, regardless of the alleged offence: s. 29(3).

[8] A bail hearing is not a trial. Allegations are untested and unproven. Though the rules of evidence are relaxed, the court cannot allow the bail hearing to devolve into a character assassination of the defendant or their proposed sureties, or to become a forum to arouse speculative fears or iterative innuendo.

[9] Under the YCJA, the pre-trial detention of a young person is an exception to the general rule, which must be based on evidence, reason, common sense, and reasonable risk-management. The show cause hearing seeks to balance constitutional considerations (no denial of reasonable bail without just cause) with the recognition that young persons are not fully developed and they cannot be treated the same as adults, while maintaining public safety and confidence in the administration of justice.

EVIDENCE

[10] The rules of evidence may be relaxed during a show cause hearing. Pursuant to s. 28 of the YCJA, the court can rely upon evidence that is considered “credible or trustworthy” as that expression is used within s. 518(e) of the Criminal Code.

[11] In this case, with the young person’s consent, the prosecution read in the allegations. They included the substantive offences and the allegations relating to the alleged bail breaches and obstruct charge. Video surveillance images were made exhibits. Several photographs seized from the young person’s cellular telephone were also produced. Lastly, an event chronology created by the prosecutor was filed on consent to assist the court. I do not propose to reiterate all of the allegations.

[12] The young person’s trial will not begin until next September and it is set to complete almost 12 months from now.

[13] For the most part, the case against the young person is circumstantial. At the first robbery, a civilian witness recorded the license plate of the apparent getaway vehicle. The license plate and the vehicle are identical to the BMW owned by the young person’s parents. The description of the driver of the vehicle on the date of the first robbery matches the young person in a general way: his gender, his skin colour, his hairstyle.

[14] Three days before the second robbery, the young person was observed by police to drop someone off at the residence of one of the other suspects of the robberies, apparently across the street from the bank targeted in the second robbery. This bank is only a couple of kilometres away from the first bank.

[15] The evidence for the prosecution of the second and third robberies is weaker than the evidence in relation to the first robbery because there is no description of the driver and the description of the escape vehicle is generic. If the prosecution is successful in bringing a similar fact application at trial, the trier of fact may ultimately infer that the defendant was also involved in these robberies.

[16] The allegation of breach of an undertaking involves police surveillance and observations of the young person at a school he was prohibited from attending. As well, on the evening after the third robbery, the young person appears to be captured in videos provided to police for another investigation that are time and date stamped. Assuming the accuracy of the time and date of the creation of these photographs, the young person was in breach of his then current bail curfew when he attended a party where a homicide eventually took place.

[17] Two weeks ago, the young person was located by police trespassing in the stairwell of a retirement home smoking marihuana. His bail required the young person to remain in his residence unless in the company of his surety (his father, E.K.), or his brother, B.K.. When confronted by the police the young person gave a false name and maintained that ruse until one of the other young men advised the police of his true name.

[18] The young person’s father and mother testified on behalf of their son. The cross-examination of each witness was vigorous and lengthy. I do not propose to re-iterate all of the testimony given.

[19] As with any witness in any proceeding, I can accept some, none, or all of what a witness says. I must consider the credibility and reliability of all witnesses. Using the metrics of balance, candour or evasion, internal and external consistency, plausibility, possible interest or motives, general character, and demeanor, I can assess testimony in terms of its apparent truth and overall reliability.

[20] E.K. testified that he felt badly when he learned that his son had been arrested for breaching his house arrest bail. I found this odd. Rather than feeling anger that his son had apparently taken advantage of one of the few times he had been left in his older brother’s care, Mr. K. felt badly that his son was arrested. Moreover, Mr. K. seemed to suggest that it was the prosecutor’s fault for not consenting to a bail variation to permit the young person to attend college as the genesis for the breach. Mr. K. suggested that if the court permitted it, he wanted the young person to travel to Egypt so that he would “have his freedom” and go to university.

[21] At times during cross-examination, E.K.’s evidence was unhelpful. When asked whether he did not answer his phone after the young person was arrested when police were trying to find him as the surety and whether or not his phone has voice mail, he testified, “I don’t know.” When asked about the two boys his son had been found with while breaching his bail, Mr. K. did not know them. When confronted with the allegation that the young person was smoking marihuana, Mr. K. claimed he did not know because he was not there. Also, Mr. K. testified that because he did not believe that his son had committed any crimes the young person should not be under house arrest. According to my notes, when confronted with the evidence of the used shotgun shell found in his car Mr. K. testified:

This is the big question. I don’t believe. Do you think if someone is involved, why would he put these things in the car? Why he would still keep it in the car? The gloves belonging to any of them, or shell. They would throw it away, the gloves and gunshots. I was in the car before and I haven’t seen them before.

[22] There were also two parts of Mr. K.’s cross-examination which belie his ability to act as a surety. At one point during the examination of the young person’s prior curfew bail, when his wife had been the surety, he was asked whether he had told his wife that they should call the police after their son had come home after 10:00 p.m. Mr. K. denied that he ever suggested calling the police because he wanted to wait and see if there was a reason. And further during the cross-examination he admitted that he put “pressure” on his son [to abide by the terms of his bail] rather than calling the authorities when he learned that the young person was breaching his 10:00 p.m. curfew.

[23] At other points, Mr. K.’s evidence was simply not believable. He testified that there were times when he had upwards of two thousand dollars in his home that he had borrowed to pay bills. He said his friend Yaser gave him the money, but he did not know Yaser’s last name.

[24] In the end, I have little confidence that E.K. fully appreciates the obligations of a surety, the requirements of strictly following a bail order, or the significance of these allegations. He seemed to make every allowance for his son because of his perception of the weakness of this prosecution.

[25] M.K. also testified poorly. There was a consistency as between the young person’s parents to remain steadfast in their support and their certainty of his innocence of all allegations despite any level of proof to the contrary. Even in her examination in chief, Ms. K. did not accept that the time stamps on the photographs recording the young person outside past his curfew were accurate. This was not based on any memory or reason to doubt the accuracy of these allegations, but rather because she blindly believes in her son’s innocence.

[26] In support of the proposed plan, Ms. K. testified that she would reduce her hours of work in order to maintain greater supervision over her son if he were released on bail. This evidence was not challenged and it offers some proof of her appreciation of the role of a surety. However, during cross-examination, Ms. K. disagreed with the suggestion that her son had been observed during police surveillance driving on 09 June. Rather, she suggested that she had two sons [of driving age] as if the police were simply mistaken.

[27] As well, during M.K.’s testimony, there was an almost stubborn insistence on claiming her son’s innocence. Initially, Ms. K. said that she could “prove” her son was innocent. When pressed, she said that she did not have the proof with her. After the matter was adjourned for three days, no evidence was produced when her cross-examination continued.

[28] To be clear, there is no obligation on a defendant to prove their innocence, nor is a surety compelled to refute the allegations. However, Ms. K. suggested that she had proof and when given the chance to offer her proof, or when confronted that no proof existed, she repeated “I don’t have this information.”

[29] Also, Ms. K. was insistent that she had never failed to enforce the young person’s 10:00 p.m. curfew when she had been the sole surety on an earlier bail order. She remained intransigent when confronted with evidence that suggested that the young person was out of the residence posing with the other robbery suspects while standing on the suspected getaway vehicle two nights after the first robbery and 3 days before the second, and the reports from the homicide investigation of cellular telephone video recordings which captured the young person out past his curfew on the night of the third robbery.

[30] During her cross-examination Ms. K. testified that her car could not have been used in the first robbery because it was in her garage at the time. When asked if there was some proof or if she simply remembered this fact, Ms. K. repeated “I don’t have this information now, sir.” Further on, when asked if she had a specific memory of her car being in the garage, Ms. K. responded, “Not at this time,” as if to suggest she may remember this at some undetermined point in the future.

[31] M.K. also suggested a possible reason for her son to be out of the residence on 11 October in contravention of his house arrest bail condition: “Maybe he was scared, sir.” When pressed, she explained that he had given a false name and after being on a restrictive bail for almost four months, her husband had been watching their son almost all of the time.

[32] There were other parts of her evidence which were equally unrealistic and implausible. After considering all of the evidence, I find that M.K. is not a reliable historian, a candid witness, or a responsible surety.

[33] On the basis of all of the evidence, including the photographs of the young person out past his curfew standing on the family car, and in light of the alleged recent breach of the house arrest bail, I find that the defendant is not committed to respecting his parents or the court. I am doubtful that the young person would respect any order imposed by this court unless it involved 24 hour supervision by one or more responsible adults.

LAW

[34] As between the parties, there was no dispute concerning the law. There were no primary ground concerns and s. 29(2)(b)(i) does not apply. Instead, the parties part ways in their characterizations of the significance of the evidence, the inferences that may be drawn therefrom, the risks posed by releasing the young person, and whether the court can devise a bail order that effectively mitigates concerns for public safety or maintains confidence in the administration of justice.

[35] The parties agreed that even where it has been established that the young person is charged with a serious offence (which is conceded), and detention is justified under s. 29(2)(b)(ii) or (iii), a release must be ordered unless the court is satisfied on a balance of probabilities that no condition or combination of bail conditions would offer adequate protection of the public or maintain confidence in the administration of justice.

ANALYSIS

[36] In all of the circumstances, I am satisfied that if released there is a substantial likelihood that K.K. would present a risk to public safety for the following reasons:

i. The young person was already on a curfew bail when these violent robberies are alleged to have occurred. That bail was stringent and in response to a charge of mischief laid while the young person was already bound by an undertaking to an officer for his initial charge of robbery. The tortured arrest, release, arrest chronology of this young person suggests an increased risk of harm to the public if he is released;

ii. The alleged robbery offences put into motion a violent chain of events (consider the use of balaclavas and an imitation firearm to intimidate and control the robbery victims; responding police officers would be compelled to consider the use of deadly force if they confronted the robbers during the robbery or their escape); and

iii. The type of car involved and the young person’s alleged willingness to act as the getaway driver for “armed” robbers suggests he was willing to put the public at great risk if police had confronted them, followed them, or attempted to prevent their escape.

[37] I have also considered that the young person was on bail from March until mid-June for an alleged robbery which was ultimately diverted through the use of extra-judicial sanctions. Section 9 of the YCJA does not preclude reliance on a bail order arising from an offence which is terminated by extra-judicial sanctions. In fact, the requirement of the young person to accept responsibility pursuant to s. 10(1)(e) of the Act supports the view that even while on bail for a robbery for which the young person accepted some responsibility he allegedly committed at least one and possibly three more violent robberies. This provides support for the belief that there is a substantial likelihood that if released the young person would commit another “serious” offence.

[38] Although in these circumstances I need not consider the applicability of s. 29(2)(b)(iii) of the YCJA, I am prepared to do so to complete the analysis. Even if I did not find the young person’s detention necessary under s. 29(2)(b)(ii), I would order his detention on the basis of the “exceptional circumstances” present in this case. The exceptional circumstances are:

i. The alleged robberies involve multiple defendants, acting in concert, on more than one occasion, with pre-meditation and planning;

ii. There is a high level of violence involved in these alleged robberies;

iii. The young person is ungovernable. He was bound by one of the most stringent of bail orders when these robbery allegations arose and the most stringent of bail orders when he allegedly walked out of his home to smoke marihuana. All of which meant apparently nothing to him and when confronted by police, he tried to frustrate their investigation by providing them a false name; and

iv. The young person has enablers rather than parents. The young person’s parents disagree with the allegations, shift responsibility away from their child, and refuse to see the significance of their lack of supervision and their attitudes as contributing factors to the young person’s ungovernability.

[39] I will now consider these exceptional circumstances and the need to maintain public confidence in the administration of justice in light of the principles in s. 3 of the YCJA and all of the circumstances, including:

i. The apparent strength of the prosecution’s case;

ii. The gravity of the offences;

iii. The circumstances surrounding the commission of the offences, including whether a firearm was used; and

iv. The fact that the young person is liable on being found guilty to a potentially lengthy custodial sentence.

[40] Section 3 of the YCJA speaks to the need for a distinct approach to administration of the criminal law when young persons are involved. This reinforces the presumption of release on bail for children in most cases, and even those for which there is a reverse-onus presumption against release for adults accused of the same offence.

[41] As well, the special consideration provisions (ss. 3(1)(c)(iv) and (d)(i)) require proceedings to respect the distinct needs of young persons. During submissions, I specifically canvassed this issue and I was advised that there are no special considerations that apply in respect of this young person.

[42] Keeping all of the principles of s. 3 in mind, when I perform the analysis of the enumerated four factors in light of the exceptional circumstances, I am compelled to the conclusion that K.K. must be detained to maintain confidence in the administration of justice in light of the following:

i. The apparent strength of the prosecution’s case with respect to the first robbery and the alleged bail violations weighs heavily in favour of detention. The gloves and balaclava seized from the young person’s family vehicle, which perfectly matches the description of the escape vehicle given by a witness, and the association of these items of clothing to the other suspects and their suspected use during all 3 robberies, and the spent shotgun shell which may be associated to the third suspect support this assessment. The evidence of an alleged use of a false name and the alleged breach of the house arrest two weeks ago is extremely strong. This one factor could overwhelm any discussion in the community causing a loss of confidence in the justice system if the young person were released again;

ii. The robberies are violent and serious. This consideration also favours detention to maintain public confidence in the administration of justice;

iii. Although the firearm allegedly used is an imitation, the circumstances of the robberies strongly favour detention given the level of danger, the repeated nature of the offences and the involvement of disguises and several offenders; and

iv. I am satisfied on a balance of probabilities that the young person is liable on being found guilty of the first robbery and the two bail order breaches to a potentially lengthy custodial sentence in excess of the 12 months he would otherwise be required to spend awaiting the completion of his trial in October 2019.

[43] However, this is not the end of the analysis. If a bail order can mitigate the risk to public safety or the possible loss of public confidence in the administration of justice the young person must be released.

[44] The young person has already demonstrated that he cannot be trusted to comply with any restriction of bail. Counsel for the young person suggests that this would be the first time the young person would have two sureties and this provides the necessary mitigation to address the requirements of ss. 29(2)(c)(ii) and (iii).

[45] This submission fails for two reasons. First, although it is true that both parents have not been sureties for their son at the same time, the fact of two sureties does not alter the nature of the bail. This bail would be no more restrictive than the last bail. Second, each parent acknowledged that they had tried to enforce the young person’s bail order when they were not the surety, without success. How is it more likely that the young person would comply with a bail order inclusive of both parents as his sureties when he has twice failed to comply with prior bail orders when these same parents were supervising him?

[46] Moreover, I am satisfied on a balance of probabilities that the young person’s parents are unable to act as sureties in this matter for the following reasons:

i. Both parents are not responsible supervisors of their son. Their individual and combined failures to enforce the prior bail orders proves the point. I agree with the prosecutor that their unwillingness to remove their rose coloured glasses impairs their ability to see red flags;

ii. Neither proposed surety fully appreciates the seriousness of the allegations, the strength of the prosecution’s case, nor their own responsibilities and short-comings as sureties; and

iii. The young person’s parents have no current assets to satisfy a pledge of bail. Despite their evidence to the contrary, which I reject as unfounded and implausible, I am not satisfied on a balance of probabilities that any family member will be willing to offer them several thousand dollars to fulfill their past broken pledges if estreatment hearings are commenced or to satisfy a new bail order in the amount of $4000.

CONCLUSION

[47] I am satisfied on a balance of probabilities that the young person’s detention is necessary for the protection or safety of the public. As well, if this young person is released in these circumstances I am satisfied on a balance of probabilities that there is a substantial likelihood that he will commit another “serious” offence. Moreover, I am satisfied on a balance of probabilities that there are exceptional circumstances that warrant the young person’s detention until trial to maintain confidence in the administration of justice, having regard to s. 3 of the YCJA and all of the circumstances, including:

i. The apparent strength of the prosecution’s case

ii. The gravity of the robbery offences;

iii. The circumstances surrounding commission of the offences, although there is no compelling evidence that an actual firearm was used; and

iv. The fact that the young person is liable, on being found guilty, to a potentially lengthy custodial sentence beyond the 12 months he will spend in pre-trial custody.

[48] I am further satisfied on a balance of probabilities that no bail condition or combination of bail conditions would offer adequate protection to the public from the risk that the young person might otherwise present, or that would maintain confidence in the administration of justice.

[49] Subject to s. 31 of the YCJA, K.K. is ordered detained in custody until trial.

Released: 26 October 2018

Justice G. Paul Renwick

[^1]: I use the word “modified” given the wording of the grounds for detention found in the Youth Criminal Justice Act, S.C. 2002, c. 1, when compared with s. 515 of the Criminal Code, R.S.C. 1985, c. C-46.