WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD
(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
(2) FAILURE TO COMPLY
Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1)...
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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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: February 12, 2018
Court File No.: Toronto
Parties
Between:
Her Majesty the Queen
— and —
K.D., a young person
Before Justice M.L. Cohen
Reasons for Judgment released on February 12, 2018
Ms. Lisa Jacek — counsel for the Crown
Ms. Luba Szkambara — counsel for the accused K.D.
COHEN, M.L., J.:
Facts and Background
[1] K.D. is charged with second degree murder. He is fourteen years of age. The victim, I.W., was 15 years of age. I.W.'s death was the result of a stabbing which occurred in a local park on October 7, 2017. This is my ruling on K.D.'s bail hearing.
[2] Two adults have been charged with first degree murder in relation to I.W.'s death: S.M., age 19, and T.L., age 18. Both adults were charged on the date of the incident and are in detention. K.D. is not alleged to have physically assaulted or stabbed I.W. He has been charged as a party who instigated the offence.
[3] The Crown is not seeking an adult sentence. K.D. has no youth court record. He has been in detention since his arrest on December 14, 2017.
[4] The Crown is seeking K.D.'s detention under section 29 (2) (a) (i), (b) (ii) and (c)(ii) of the Youth Criminal Justice Act. In the event section 31 of the Act comes into play, the Crown opposes an order placing K.D. with the proposed responsible persons.
[5] I begin with a brief summary of the allegations in this case.
Summary of Allegations
[6] Detective Brandon Price, one of the primary officers investigating the offence, outlined the circumstances giving rise to the accused's arrest.
[7] K.D. had been friends with T.L. and S.M. for a number of months prior to the incident. During the summer of 2017, K.D.'s expensive baseball hat had been stolen and it is alleged that K.D. believed he knew who was responsible. According to the detective, at some point in the summer, the accused directed T.L. to approach and intimidate a group of friends of the purported thief by making them aware that he, T.L., was in possession of an extendable baton. This T.L. did. While the connection of this event to the incident in the park was not articulated, it may represent an instance in which one of the adult co-accused allegedly responded to the direction of the much younger K.D. to menace some young people with a weapon.
[8] The detective testified that on October 7, 2017, approximately 30 young people between the ages of 14 and 15 were in attendance at a "jam" in a local park. The deceased, I.W., age 15, was among them. A jam is a social gathering, advertised on social media like Snapchat and Instagram.
[9] It is alleged that K.D. had been with S.M. and T.L., and a third adult, Dwight Francis, earlier in the day, and that the three adults accompanied K.D. to the jam. On the way they met up with H.D., one of K.D.'s friends. H.D. later gave a statement to the police in which he stated that K.D. told him the adults were with him "for protection". H.D. also said that K.D. told him that the adults had switchblades, and two "special surprises". A "special surprise" was never defined. H.D. told police that he observed K.D. approach T.L., and take a gold bladed knife from T.L.'s hoodie pocket. K.D. showed H.D. the knife.
[10] At the park, H.D. stated that he heard K.D. tell S.M. and T.L. that a group of young people were "talking shit," and that S.M. and T.L. should fight them. It is this allegation that may render K.D. a party to the offence as the instigator.
[11] According to H.D., T.L. and S.M. then approached a young person in the group stating "You're saying shit." I.W., the victim, intervened, saying "What's going on? What's the problem?" When I.W. intervened, T.L. and S.M. focused their attention on him.
[12] According to another witness, T.L. and S.M. became angry and began swinging a plastic bottle and pushing I.W. around. At that time either or both adults showed a knife and I.W. ran away. T.L. and S.M. chased I.W., and he was caught and thrown to the ground. He got to his feet, tried to flee, and yelled out "I've been poked". I.W. managed to run for a short distance, and then collapsed.
[13] According to the witness, I.W. did not lay his hands on anyone, was not yelling, and did not have a weapon. The detective testified there is no indication that I.W. knew his attackers.
[14] At 8:44 pm, the police received a 911 call about a stabbing at the park. On arrival at the scene, the police located I.W. suffering from a stab wound to the chest. I.W. was taken to hospital, where he died at 9:50 p.m.
[15] There were at least 30 young people at the jam. At the time of the bail hearing, the police had not interviewed all of the potential witnesses. Several of the witnesses they had interviewed corroborated H.D.'s description of the event.
[16] S.M., T.L., Francis, and K.D., were arrested a short distance from the scene. A gold bladed knife was subsequently recovered along the route taken by K.D. and the adult co-accused. S.M., had a stab wound to his buttocks, and there was a trail of blood along the route the group had taken.
[17] The accused gave an exculpatory statement to the police. He was released without charge, and was not arrested until December 14, 2017. As I have indicated, K.D. has been in detention since that date.
Legal Framework
[18] This release hearing is governed by the Charter, the YCJA, and section 515 of the Criminal Code.
[19] Section 11 of the Charter provides, inter alia, that any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
[20] At this time K.D. is presumed innocent of the charges against him. He has the right not to be denied reasonable bail without just cause.
[21] Many provisions of the Declaration of Principles set out in section 3 of the Youth Criminal Justice Act militate against the detention of young persons charged with criminal offences. For example, under Section 3(b) (iii) K.D. is entitled to enhanced procedural protection, and under section 3 (d) (i), he is entitled to special guarantees of his rights and freedoms, which would include his Charter right to reasonable bail.
[22] In R. v. R.D., 2010 ONCA 899, at paragraph 56, Justice Rosenberg states that
The law favours release in the context of young persons, even those charged with very serious offences, as supported by the principles set out in s. 3 of the Act and the principles of fundamental justice recognized by the Supreme Court of Canada that relate to young persons. As Abella J. said in R. v. D.B., 2008 SCC 25, at para. 41:
What the onus provisions do engage, in my view, is what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.
[23] I would note here that the presumption of diminished moral blameworthiness is particularly apposite in the case of a fourteen year old child.
Statutory Framework for Detention
[24] Sections 28 and 29 of the Youth Criminal Justice Act govern the detention and judicial interim release of young people charged with criminal offences. These provisions are as follows:
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.
[25] While these provisions would appear to be a comprehensive code governing detention before sentencing of young people, section 31 of the YCJA, which provides for placement of a young person in the care of a responsible person, requires the court to consider section 515 of the Criminal Code if detention would otherwise be ordered.
[26] Section 31 provides an additional avenue of release for a young person. Section 31 is intended to curtail resort to pre-trial detention for accused youth, thereby reducing the over-incarceration of youth – one of the main objectives of the YCJA (R. v R.D., par. 32).
[27] Section 31 provides that if a young person would be detained in custody under section 515 of the Criminal Code, and meets the other criteria in Section 31, the young person may be placed with a responsible person instead of being detained. Section 31 reads as follows:
Placement of young person in care of responsible person
31 (1) A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody if a youth justice court or a justice is satisfied that
(a) the young person would, but for this subsection, be detained in custody under section 515 (judicial interim release) of the Criminal Code;
(b) the person is willing and able to take care of and exercise control over the young person; and
(c) the young person is willing to be placed in the care of that person.
Inquiry as to availability of a responsible person
(2) If a young person would, in the absence of a responsible person, be detained in custody, the youth justice court or the justice shall inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person's care.
[28] Section 31 "contemplates a closer level of supervision than is expected of [a] surety": (R. v R.D., par.55), since the responsible person must be "willing and able to take care of and exercise control over the young person," and must sign an undertaking to that effect. Section 139 of the YCJA imposes penal consequences, including imprisonment, on a responsible person who wilfully fails to comply with the undertaking.
[29] In my view, regarded as a whole, all the provisions I have detailed emphatically favour the release of young persons charged with criminal offences. Nonetheless, and naturally, there will be cases where detention is justified. Bearing these considerations in mind, I now turn to a more detailed analysis of the issues in this bail hearing.
Analysis of Detention Grounds
[30] I begin by turning to Section 29(2) of the YCJA, which provides that a youth justice court judge may only order that a young person may be detained under limited and specified circumstances. The Crown bears the onus of establishing that the specified conditions justifying a detention order are met. In this case, the Crown argues that detention is justified under section 29(2) (a), (b) (ii), and (c) (ii).
[31] Considering the evidence respecting these circumstances, I find at the outset that the Section 29 (2) (a) gateway is open – the young person has been charged with a "serious offence". A "serious offence" is defined in section 2 of the Act as "an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more". Second degree murder is punishable under the Criminal Code with a sentence of life imprisonment.
[32] Secondly, I find that the Section 29 (b) (i) condition is not established. K.D. has no youth court record, and no history of failing to attend court. Furthermore, I am satisfied on a balance or probabilities, based on the mother's testimony, which I will address in more detail later in this ruling, that there is no substantial likelihood that, before being dealt with according to law, he will not appear in court when required by law to do so. The Crown does not argue otherwise.
[33] The Crown does not argue section 29 (2) (b) (iii). Thus the issue in this case is whether the justification for detention under section 29 (2) (b) (ii) is established. Has the Crown established to the requisite standard that K.D.'s 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 K.D. will, if released from custody, commit a serious offence?
[34] Although it is not a specified consideration under 29(2)(b)(ii), I will note here I am not in a position to assess the strength of the Crown's case against K.D. In part, the outcome will depend on the credibility and reliability of a number of witnesses, many of whom have yet to be interviewed, and on the results of forensic investigations which were not available at the time of the bail hearing.
K.D.'s History of Violence
[35] In considering whether the Crown has established there is a substantial likelihood that K.D. will commit a serious offence if released, I have taken into account the fact that K.D. has no youth court record. However, the evidence on the bail hearing satisfies me that, at least since the spring of 2017, K.D. has been the perpetrator of numerous violent assaults which never resulted in criminal charges. K.D.'s mother was the victim of these assaults.
[36] K.D. has lived with his mother all his life, and the plan is that he return to her care if released. The mother, the maternal grandmother, and a maternal uncle, are proposed as sureties.
Family Background and Proposed Sureties
[37] Although K.D.'s parents have been separated for a number of years, the evidence on the bail hearing suggests he is strongly connected to both of his parents. His father, however, suffers from long-standing substance abuse problems and mental health difficulties. The father's behaviour in the family home, when intoxicated, has resulted in the involvement of the police and the Children's Aid Society. On more than one occasion, including at present, the mother has banished the father from her home, and from contact with K.D., unless and until he gains control over his substance abuse problem.
[38] The father has been homeless from time to time, and, although he currently has a stable residence, he is not in a position to offer himself as a surety, and does not purport to do so.
[39] The mother testified at length on the bail hearing. She impresses as a strong, articulate, independent and intelligent woman who is intensely dedicated to the best interests of her son. I am satisfied that she is entirely committed to ensuring K.D.'s protection and welfare.
[40] The mother has stable employment as a dog-walker, and the family has resided at the same address for years. She is close with the maternal grandmother, and her siblings, and the maternal grandmother particularly, is very attached to K.D.
[41] K.D. is a talented athlete. Despite the family's modest financial circumstances, the mother has arranged for her son to participate in competitive swimming, a sport at which he excels, as well as competitive lifeguarding, kickboxing, and other activities.
[42] The mother stresses openness and honesty in her relationship with her son. She is loyal, loving, and understanding, and she struggles mightily to manage what she sees as K.D.'s difficult adolescent behaviours. However all of these circumstances, which the mother depicted very forcefully in her testimony, do not outweigh the disturbing picture which emerges from the records of the Children's Aid Society of Toronto.
Children's Aid Society Records
[43] I am going to digress briefly to explain my use of the CAS records.
[44] Section 28 of the Youth Criminal Justice Act provides that, except where inconsistent with, or excluded by, the Act, the judicial interim release provisions of the Criminal Code apply to the detention and release of young persons under the Act.
[45] Section 518 (1) of the Code provides that in any proceedings under section 515
… (e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.
[46] Early in the hearing, I directed the production of the complete record of CAS involvement with K.D.'s family. The relevance of the records is conceded, and the production order was not opposed.
[47] The records were produced to the court, and, after vetting by me for privacy and relevance, copies of the records were provided to counsel under conditions of confidentiality, for use on the hearing. The hearing was adjourned to provide counsel the opportunity to review the records. In the result, both counsel agreed to the admissibility of the records. There was no request for a voir dire.
[48] The records, which consist primarily but not entirely of social workers' notes, were extensive. For purposes of efficiency, counsel earmarked those portions of the records each wished the court to consider. No objection was raised by counsel with respect to the authenticity, relevance or completeness of the records.
[49] The current Family Service Worker testified, and was subject to cross-examination. The worker was the author of the some of the most recent notes. Although he had not created all the records considered in this hearing, he had reviewed them in his capacity as family service worker to the family. The mother, who was the source of much of the information in the notes, had the opportunity to cross-examine the social worker through counsel, and, in her own testimony, to give her view of the accuracy, reliability, and relevance of the records, and to explain their context.
[50] It is clear from the records that CAS involvement with the family generally occurred at the instance of the mother, who was seeking the assistance of the society in dealing with difficulties in the family. The mother was not adversarial in her relations with the society, and there was no suggestion of any reason a worker might have to fabricate a note.
[51] Considering all of these circumstances, I found the records to be credible and trustworthy, and I have relied upon them, in the context of all the evidence, for my decision.
K.D.'s Violent Behavior Toward His Mother
[52] The CAS records demonstrate a relatively recent and concerning history of aggressive and violent behaviour by K.D. against the mother. Of secondary importance, but still relevant, are records indicating that the mother engaged in what she regarded as necessary interventions to assist the father, even when those interventions contradicted the terms of court orders restricting him from contact with herself and K.D.
[53] Terrence Sit, the society witness, has been the family service worker since September, 2017. He testified that the family first became involved with the society in September, 2013, as a result of a police referral regarding an incident of domestic violence in the home. Although the file was closed after a short period, the society remained involved from time to time with the family, up to the present date. During this time, the focus shifted from the perpetration of domestic abuse by the father against the mother, to assisting the mother in managing K.D.'s increasingly violent behaviours.
[54] On May 7, 2017, the mother called the Youthdale Crisis line. Youthdale is a mental health agency for children and their families. The mother was referred to the Children's Aid Society of Toronto.
[55] The mother told the society that K.D.'s behaviour was escalating, and that she was afraid of him. He was lying, defiant, assaultive, aggressive and agitated. He was a "180" from what she knew. Prior to this time, K.D. had engaged in swimming, training, and athletic competition. He had been a happy, outgoing, energetic boy, but had suddenly stopped participating in these activities and become very withdrawn, quiet, and disengaged.
[56] The mother stated that K.D. was shoplifting, and causing damage in the home, including smashing a window. She reported that in the last four days he had assaulted her twice. She said there was an argument about his cell phone, and he began punching and throwing things at her. The mother stated that she had to call the father over for help. Fortunately, the father was able to calm K.D. down, and K.D. went to the father's home for a few days.
[57] The mother reported that K.D. had tried to wrap a belt around her neck. He broke through the door when she locked herself in the bathroom.
[58] K.D. threatened the mother by telling her he would tell the police she was assaulting him. He called his father and clapped his hands together and said "Ow! Ow!" to make it appear that the mother was hitting him.
[59] On May 8, 2017, a worker visited the home. The worker observed bruises on the mother's arms and face, and that she was limping. The mother said the bruises were caused by K.D.'s beating her.
[60] On May 9, 2017, the society developed a safety plan with the mother. The society was concerned that K.D. would hurt the mother "to the point where she would be seriously injured or worse." The mother stated that K.D. was "charging at her with knives" and stabbing paper on the wall.
[61] On July 5, 2017, the mother reported to the CAS that K.D. had broken two of her ribs, and bit her arm, which was "black and blue". She showed the worker the bite marks. The mother testified the injuries occurred because she was trying to restrain K.D. when he didn't want to be held.
[62] In late July, the mother brought K.D. to the Hospital for Sick Children. She wanted him removed from the home.
[63] The mother reported that K.D. was name calling and yelling, stabbing things in the home with knives, punching holes in the wall, smashing objects in the home, assaulting her resulting in broken or painful ribs, punching her in the arms, had hit her repeatedly in the face with a shoe causing a swollen jaw, slapping her head, had thrown her over the bed, tried to suffocate her with a pillow, and had pulled some of her hair out because she tried to take away his cell phone. She stated that during the assaults his affect was flat.
[64] The mother stated she feels powerless when K.D. invites friends over, and that sometimes she is afraid of returning home from work because she doesn't know what his mood will be. The mother stated she was terrified for K.D. to return to her care at that point. She reported being frustrated with the services she had sought out, and stated, "How seriously do I need to be hurt before someone cares?"
[65] The attending physician at the hospital called the society and indicated K.D. could not go home because of the possibility of his hurting the mother. The doctor diagnosed a conduct disorder. The doctor reported that the mother presented as overwhelmed, and told him she was nursing broken ribs from a previous assault. The mother reported that she was walking on eggshells in the home, and felt she could not challenge K.D.
[66] K.D. was placed in a group home at the mother's request. The mother was appalled by the conditions in the group home, and removed K.D. from the home after 6 days.
[67] The mother and the society arranged for K.D. to receive counselling. At one agency, K.D.'s issues were described as "emerging conduct disorder/cannabis use/parent child relational issues." The author concluded that "K.D. would be best served in a residential setting away from mom in a more structured environment." This never occurred.
[68] Following the crisis in July, according to the mother, K.D. stabilized and returned to his former positive behaviour and interests. Since the original arrest in October, she testified that he has been very respectful with no issues at home.
[69] This evidence was contradicted by the CAS records and other testimony of the mother. At the end of October there was an incident at an overnight school camping trip in Muskoka where K.D. threw a salt and pepper shaker at another student at the dinner table and hit him in the face. K.D.'s school also reported that K.D. chased a friend with a chair in the school hallway, was difficult, and mocked the teacher.
[70] As I have noted, K.D. was arrested in October, and then released. While one might have expected this experience to have been chastening, by the end of November, the mother reported to the family service worker that K.D. was "smoking weed, lying, failing school, being disobedient and breaking things". She said that "Lately he has been smoking and not going to school and being disrespectful in the home, and she was feeling she did not know what to do with him.
[71] In November the mother spoke to the society about conflict with K.D. and his friends. She reported she is home schooling K.D. because he is struggling academically and getting into fights and being defiant at school. Nonetheless, she decided to conclude K.D.'s counselling.
[72] In December, the family service worker noted that mother was "…worried about K.D. at home and in the community", and the worker was concerned that that K.D. can be quick to react, and can become aggressive, impulsive, and involved in risky behaviours and decisions.
[73] The mother testified she has struggled to understand what is causing K.D.'s behaviour, and was the organizer of the counselling in the community. However, despite her manifest love for K.D., her energetic search for insight and resources, and her best intentions, the evidence is that K.D.'s aggressive behaviours remains an on-going problem that she and the society have been unable to resolve.
Credibility Assessment of Mother's Testimony
[74] Although the mother denies being fearful of her son, and continues to assert he is stable, I do not find this testimony credible. The mother testified she would "do anything for my baby." I found her testimony in many ways to amount to an argument that she could handle K.D.'s behaviour so detention was unnecessary. Thus she tended to characterize K.D.'s behaviour as that of a "typical teenager", and to minimize his violence. For example:
Regarding the incident where K.D. tried to put a belt around her neck, she testified that "He didn't get it around my neck, and I just told him to stop being ridiculous."
Regarding his throwing her over the bed and putting a pillow over her face, she testified "I remember him putting a pillow over my head. He was just trying to freak me out."
Regarding the reported assault or assaults with a shoe, she stated "He threw a shoe at me because he wanted me to stop yelling…I threw a shoe back. It was him throwing a tantrum".
Similarly she stated "He pulled my hair – I pulled his hair," as if these revision of her earlier statements, in which she now characterizes the violence as reciprocal, somehow justified K.D.'s violence towards her;
Her version of the incident in Muskoka is that, "They were playing a salt game," and his chasing the other student with a chair was "goofing off."
[75] Whatever has been occurring in the home, and I cannot be satisfied that the mother is forthcoming on this issue, it is true that nothing has resulted in a call by her for intervention by the police, the CAS, or a mental health practitioner. But this status quo is not to be equated with stability. Based on the CAS records, I find that an aura of crisis hangs over the household, because, as the records suggest, K.D. exhibits a continuing pattern of anger, defiance, and aggression in the home.
[76] I also infer from the evidence that in order to protect herself, the mother is unlikely to challenge K.D. Challenging him is what led to her injuries.
[77] Furthermore, the mother testified she approved of K.D.'s friendship with the co-accused T.L.. K.D. was allegedly together with T.L. during the earlier intimidation of K.D.'s friends regarding the hat, and with T.L. and S.M. before the incident at the park. There was no persuasive evidence that she had explored this relationship with K.D. after the incident, or that she had examined her son's judgment in his choice of friends, or her own judgment, on this question.
Conclusion on Section 29(2)(b)(ii)
[78] The severity of K.D.'s violence to his mother over the summer, and his intermittently defiant behaviour since, satisfy me that K.D.'s detention is necessary for the mother's protection and safety, and for the protection of the community. His repeated and severe acts of violence towards his mother, his continuing anger and defiance, his impulsivity, and his poor judgment, satisfy me that there is a substantial likelihood that if released from custody, he will commit a criminal offence. Given the allegations before the court, and the history of violence towards his mother, there is a substantial likelihood the offence will be serious. Notwithstanding K.D.'s young age, the Crown has established, on a balance of probabilities, a justification for his detention under section 29 (2) (b) (ii).
Analysis of Proposed Release Conditions
[79] Having so concluded, I must determine under Section 29 (2) (c) (ii), on a balance of probabilities, whether, the Crown has established that that no condition or combination of conditions of release would offer adequate protection to the public from the risk that the young person might otherwise present.
[80] In my view, the Crown has met this burden. The defence has presented a release plan to the court. Based on the evidence, I find the plan does not provide adequate protection to the public from the risk K.D. might otherwise present.
[81] The defence proposes that the mother, her mother, and her brother, act as sureties, and that K.D. be subject to a house arrest. The proposed sureties testified at the hearing. Another uncle, who did not testify, is available to assist in the supervision of K.D.
[82] The mother is a potential victim and, much as she wishes to help her son, cannot be regarded as a reasonable surety.
[83] Furthermore, the mother's habit is to try to solve the intractable problems of her partner and son, through her own efforts, and irrespective of what the legal situation might be. It must be remembered that the mother permitted the father to reside with her when he was bound by a recognizance to have no contact. More importantly, she endured considerable physical abuse by K.D. without calling the police.
[84] The mother is the principle object of K.D.'s anger. Her tendency to minimize and deny his behaviour increases her vulnerability. Her need to enforce the restrictive conditions of a house arrest is likely to escalate K.D.'s anger.
[85] The fact that K.D. is only 14 years of age, which ought to be a compelling circumstance supporting release, does not reduce the mother's risk. As we have seen, K.D. is strong physically, and his violence and threats of violence have been severe. In my view, the mother, even with the assistance of other family members, cannot control him.
[86] Furthermore, recent experience suggests that it is unreasonable to expect K.D.'s behaviour will change as a result of the charge and his detention. Having been present at the lethal stabbing of a fifteen year old, having been friends with and in the company of the alleged stabbers, and having been arrested and then released, have not fundamentally changed his behaviour. After a matter of weeks, K.D.'s behaviour deteriorated to the point where he was again breaking things in the home.
[87] The mother's brother and grandmother and the other supportive family members also love K.D. However they have never cared for him for any length of time, and they do not have children of his age. They have never experienced or had to deal with K.D.'s defiance and aggression. They did not appreciate what was going on in the mother's home, and their habit is to defer to her authority over K.D.
[88] The Children's Aid Society, who might function as a support, have indicated that they have no new plan to address the needs of this family, whose son was present at a killing, and has now been charged with second degree murder. The family service worker acknowledged he never spoke to father, although the father's conduct may have played a role in K.D.'s anger, he knows nothing about the extended family, and he had no new response to K.D.'s diagnosis of conduct disorder. Residential placement in a specialized foster home does not appear to have been considered.
[89] Indeed, I found the family service worker who testified, to be strangely detached from the gravity of the concerns in this case. He stated that, notwithstanding the charge K.D. faces, the society sees no need for extra safeguards and has no new plan. This remains the case even though the society believes the mother "cannot predict what K.D. can do in the community", and even though the plan – for counselling – has not proved effective to date. The worker testified that he would continue to meet the family once per month, more often if requested or ordered, and that basically, he was "There to support [the mother]."
[90] I am not persuaded the mother and the sureties can control the risks in this case, and I am satisfied, on a balance of probabilities, that no condition or combination of conditions of release would be adequate to protect the public from the risk K.D. might otherwise present.
Section 31 Analysis: Responsible Person
[91] In the result, I would order detention of K.D. In these circumstances I am required under section 31 (2) to inquire into the availability of a responsible person, and whether K.D. is willing to be placed in that person's care.
[92] The defence proposes that K.D. be placed in the care of his mother and maternal uncle as responsible persons under the Act. The mother, the uncle, and K.D. are willing to sign the undertakings described in Section 31(3). The mother and uncle testified on this issue.
[93] I have considered my discretion to place K.D. with the proposed responsible persons, who are under a more significant burden to supervise than a surety. As Justice Rosenberg observes in R.D.,
Where a parent is simply named as a surety for a young person, the parent will in addition to their surety duties take care of the young person, but this is because of duties imposed by law outside of the bail regime. The s. 31 responsible person has the duty to take care of the young person not because of other common law or statutory duties but because of the written undertaking reinforced by the penal consequences. (par.38)
[94] The two proposed responsible persons are the mother and her brother. The mother would take care of and be responsible for K.D. The uncle may not have the ability to fulfill that role given his work obligations. But together they are certainly committed to doing their best.
[95] The legal pressures to ensure compliance with conditions of release add nothing to the established willingness of the mother and brother to enforce the bail conditions. The problem, as I have found, is not one of willingness. The problem is that there is no realistic probability that K.D. can be controlled by the mother and/or uncle. They are not, in my view, able to exercise control over him to the degree required to protect the public from the risk he presents, and there will be no order under section 31.
Final Order
[96] K.D. is ordered detained in custody.
Released: February 12, 2018
Signed: Justice M.L. Cohen