WARNING
The court hearing this matter directs that the following notices 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
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 ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD — (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice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the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as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 — Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: October 4, 2019
Court File No.:
- 18 Y 180778-00
- 19 Y 190274-00
- 19 Y 190323-00
- 19 Y 190527-05
- 19 Y 190528-05
Parties
Between:
Her Majesty the Queen
— and —
T.S., a young person
Before: Justice P.J. Jones
Heard on: September 20, 2019
Reasons for Judgment released on: October 4, 2019
Counsel:
- S. Virk, counsel for the Crown
- R. Chu, counsel for the defendant T.S.
Decision
JONES, P.J. J.:
[1] Introduction
T.S. is a young person within the meaning of the Youth Criminal Justice Act (YCJA). Having been detained at his initial bail hearing before His Worship, Justice of the Peace Ng on September 9, 2019, he appeared before me on an application for a review of his detention order under section 33(1) of the YCJA, as an original application.
Background
[2] Youth Court Record
T.S. has no youth court record, although he is currently facing four sets of charges.
[3] December 2018 Charges
On December 13, 2018, he was charged with kidnapping, administer noxious substance, assault, assault with a weapon, assault with a weapon, assault cause bodily harm, aggravated assault, forcible confinement, and threaten death.
[4] Allegations Relating to December 2018 Charges
On that date, a number of other people were charged including at least one other young person and a number of adults. The synopsis was read into evidence with the consent of the accused and I understand that the allegations relate to a dispute about a drug debt and subsequent actions taken in an attempt to collect on the debt between the dates March 15 to 17, 2018. It is alleged in the synopsis that the complainant was forced into the trunk of an SUV and blindfolded and driven to an unknown apartment building where she was assaulted on a number of occasions by the accused, forced to drink a noxious substance (apparently a concoction made up of the contents of the fridge). According to the complainant, she was detained against her will for two days, and during that time was punched and kicked about the head and body and her hands were stepped on. She alleged that she was beaten with a belt and with a broomstick and various forms of torture were administered. She alleged that a mixture of salt and ice was applied to her body which was intensely painful. She complained that lit cigarettes were extinguished on her hands, arms and back of her neck, causing multiple open wounds and subsequent scarring. At one point it was alleged the complainant was bound and tied by the neck to a bed frame. Also, she was told that she would "swim with the fishes" if she did not pay the debt. (She understood that this meant that she would be killed if she did not comply and she feared for her life.) The synopsis also alleges that she was sexually assaulted at knife point, however, this youth is not alleged to be a party to that offence. She escaped when most of the accused were out of the apartment and those remaining had fallen asleep. She immediately reported the incident to the police and sought medical attention for her wounds.
[5] Initial Release – December 2018
The Crown agreed that there were triable issues with respect to these charges. Identity will be an issue at trial as the youth was not charged until December. Also, as there are multiple accused, the role of T.S. and his level of involvement will be an issue at trial. On December 14, 2018, T.S. was released by His Worship Justice of the Peace Scarfe on a recognizance of bail with his mother named as a surety.
[6] Failure to Appear – April 2019
On April 18, 2019, T.S. failed to attend court. T.S. turned himself into police custody on April 30, 2019 where he was charged with fail to attend court. On May 1, 2019 the Crown's application under s. 524 was granted and T.S. was released on a global recognizance of bail with his mother named as surety by Her Worship Justice of the Peace Daniels.
[7] Failure to Comply – May 2019
On May 24, 2019, T.S. was charged with failure to comply with a term of his release which required that he be in his residence from 6 p.m. to 8 a.m. when he was allegedly found outside his residence at 6:17 p.m. On May 27, 2019, the Crown's application under s. 524 of the Criminal Code was granted and the Applicant was released on a global recognizance of bail with his mother named as surety by Her Worship Justice of the Peace Daniels. This bail required that he be in his residence 24 hours a day, 7 days a week except for the purposes of traveling directly to, from and while at scheduled counseling appointment, for the purposes of traveling to and from and while at school and to remain on school property during school hours unless he was in the direct and continuous company of his surety, his step father, his uncle Z.F. or his grandfather M.S. The bail required that he have no contact with various persons or that he attend at certain locations. It also contained a standard weapons prohibition clause.
[8] August 2019 Charges – Firearm and Drug Offences
On August 31, 2019, T.S. was arrested and charged with 10 new charges, including the following: unauthorized possession of firearm, careless storage (firearm), careless storage (ammunition), possession of firearm knowing its possession is unauthorized, possession of prohibited or restricted firearm with ammunition, possession of a weapon (firearm), possession of a weapon (ammunition), Possess Schedule 1 Substance for the purpose of Trafficking (Cocaine), Possess Schedule 1 Substance (Cocaine), Possession of proceeds of Crime.
[9] Circumstances of August 2019 Arrest
The allegations relating to these charges were read in by the Crown with the consent of counsel for the young person. I was advised that officers from the 14 Division Major Crime Unit executed a search warrant at the young person's residence. When they arrived, the mother of the accused was present and was verbally abusive and not cooperative with the search and was ultimately charged with obstruct police. While executing the search warrant, the police found T.S. in a bedroom with five young persons and two adults. In that bedroom the police uncovered a loaded semi-automatic Ruger firearm with three rounds of 9mm ammunition in the chamber in a sports bag hung on the bedroom door, a large quantity of cocaine in a bag on the bed (241.37 grams of cocaine (worth $10,000–$15,000) and $660 Canadian.) None of the money was found on T.S. There is no suggestion that any of the other accused lived in this residence. The police also found a number of blue bandanas in the room and I was advised that two of the accused had screen savers on their phones showing them wearing blue bandanas suggesting to me a close association of the individuals in the room.
[10] September 2019 Detention Order
On September 9, 2019, T.S. appeared before His Worship Justice of the Peace Ng for a show cause hearing. The Crown's application under s. 524 of the Criminal Code was granted and T.S.'s former release was vacated. His Worship ordered T.S. detained in custody on all charges pursuant to s. 515 of the Criminal Code.
Relief Sought
[11] Crown's Position
On this original bail application, the Federal Crown seeks a detention order of T.S. under section 29(2)(b)(ii) (secondary ground) and 29(2)(b)(iii) (tertiary ground) of the YCJA.
[12] Defence Position
Counsel for T.S. seeks his release on a recognizance with sureties on strict terms and is prepared to consent to a "house arrest" term 24/7 with no access to the community except in the presence of his sureties. He proposes that his uncle J.S. and his grandmother E.M.M. be accepted as his sureties on the basis that they are fit and that their plan of supervision will offer adequate protection to the public from the risk that T.S. might otherwise present. The sureties offered to post bail in the amount of $1000 and $1400 respectively.
Statutory Framework
[13] Bail Regime for Young Persons
Section 29(2) and 29(3) of the YCJA sets out the bail regime for young people who are charged with criminal offences.
[14] Section 29(2) and 29(3) of the YCJA
29(2) JUSTIFICATION FOR DETENTION IN CUSTODY
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, 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.
29(3) Onus
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.
[15] Differences Between Youth and Adult Bail Regimes
These provisions contain a much stronger presumption for release under the YCJA than is the case for adults faced with the same charges under the Criminal Code bail provisions. As articulated by Justice D.A. Harris in his decision R. v. K.K., [2019] O.J. No. 598 in paragraph 16 of that decision, the main differences between the youth bail regime and the adult system are these:
"(a) The Crown always bears the onus of establishing that a detention order should be made. There is never a reverse onus on the accused (Section 29(3)).
(b) Detention is only justified for a "serious offence", defined in Section 2 of the Act as an indictable offence with a maximum sentence of 5 years or more. Alternatively, a pattern of either outstanding charges or criminal findings of guilt will suffice (Section 29(2)(a)(i) and (ii).
(c) The primary ground requires detention if there is a "substantial likelihood" of the accused not appearing. Section 515(10)(a) refers to detention when "necessary" to ensure attendance (Section 29(2)(b)(ii).
(d) The overarching standard in the secondary ground of the protection and safety of the public remains from Section 515(10)(b) but the substantial likelihood of criminal offences now only relates to a "serious offence," again defined as an indictable offence punishable by at least 5 years (Section 29(2)(iii).
(e) The tertiary ground is the same as for adults except it only operates against an accused if there are "exceptional circumstances." (Section 29(2)(b)(iii)).
(f) Unlike the adult bail provision, sub. (c) specifically requires the bail justice or judge to look at whether release conditions can reduce the risk on the primary, secondary or tertiary grounds in order to permit release (Section 29(2)(c)(i)-(iii)). See R. v. R.B., 2013 NUCJ 7, [2013] N.J. No. 11 (Prov. Ct) at para. 40"
T.S.'s Release Plan – Discussion
[16] Onus
The onus justifying an order for detention never shifts and always rests with the Attorney General.
[17] T.S.'s Position
T.S. acknowledges that many of the offences charged on August 31, 2019, are "serious offences" within the meaning of the YCJA. However, it is the position of T.S. that his release plan offers adequate protection to the public from the risk he may otherwise present.
[18] Proposed Release Plan
The bail plan is that T.S.'s grandmother and his paternal uncle be joint sureties on a house arrest basis 7 days a week and that T.S. would move out of Parkdale and live with them in Etobicoke.
[19] Uncle's Testimony
Both his grandmother and his uncle testified at the bail hearing. They proposed that T.S. reside at his uncle's home at night. When his uncle is ready to leave for work at 6:20 a.m., the plan is that his grandmother takes him to her apartment for the day and returns him to the uncle's apartment at the end of the working day. His uncle testified that he has no criminal record and is the paternal uncle of T.S. He testified that he was 13 years old when T.S. was born and that for the first 12–13 years of T.S.'s life he spent weekends with his mother's (T.S.'s grandmother) trailer. He expressed his commitment to his nephew, and I was very impressed with him and accept that he is sincere in his desire to work with T.S. and give him a "second chance". He indicated that he just recently found out about the details of his nephew's charges. He said that he did not know about the details outlined by the Crown relating to either set of charges or any alleged involvement of his nephew in the drug culture, nor did he know any of the co-accused. The uncle testified that if T.S. was not permitted to be out of the home, he proposed that T.S. be homeschooled.
[20] Grandmother's Testimony
T.S.'s grandmother testified that she was 54 years old and had no criminal record. She told the court that she currently does volunteer work but has not been otherwise employed since she suffered from three strokes in 2014 and 2015. She told the court about her prior relationship with her grandson and her wish to be instrumental in giving him a "second chance". She testified that she had been very involved in his upbringing until he turned 12–14 years when he entered into his teenage years. She acknowledged that she did not know the details of his alleged criminal involvement and does not know any of his friends or co-accused. She felt that if T.S. moved out of the Parkdale area to Etobicoke many of the problems T.S. was experiencing would disappear.
[21] Crown's Response
The Crown acknowledged that she did not question the sincerity of the proposed sureties. However, she urged the court to reject the plan on the basis that the proposed sureties do not know the person that their nephew/grandson had become. They do not know the people involved with their nephew/grandson and are therefore unable to exercise effective supervision of T.S. The Crown asked the Court to find that the plan of supervision falls short and that neither the grandmother nor the uncle would be able to offer adequate protection to the public from the risk posed by T.S. on the secondary ground and that there were exceptional circumstances on the tertiary ground that would justify detention in order to maintain confidence in the administration of justice.
Order
[22] Court's Finding – Secondary and Tertiary Grounds
After weighing all the considerations outlined above, the Crown has satisfied me, on a balance of probabilities, with respect to the supervision plan proposed by the defence, that there is a substantial likelihood that the young person will, if released, commit a serious offence, and equally importantly, there are exceptional circumstances that indicate detention is necessary to maintain confidence in the administration of justice having regard to the principles set out in section 29(2) of the YCJA. I say this, not because I question the bona tides of the proposed sureties, but for the following reasons:
1. Seriousness of Charges
T.S. is alleged to be involved in very, very serious offences. On December 13, 2018, he was charged with a total of 9 charges, including kidnapping, aggravated assault, and forcible confinement. On August 31, 2019, he was charged with 10 new counts involving a loaded gun and possession for the purpose of trafficking in cocaine all, of course, relating to the drug trafficking culture.
2. Breach of House Arrest Conditions
T.S.'s latest set of charges arise from a situation found in his home while he was on house arrest and subject to a bail condition prohibiting him from possessing any firearm or weapon. A large quantity of drugs (241 grams of cocaine valued at $10,000–$15,000), a loaded 9mm Ruger firearm (with 3 rounds) along with $660 CND were found in what I assume to be his bedroom based on the fact that 5 youths and 2 adult friends were also present in the bedroom when the police executed the search warrant.
While these are allegations, and I presume T.S. is innocent of these charges, the Crown's case is relatively strong and there is a concerning perception that his mother had no control over him given the crowd of youth and adults in his room and the proliferation of blue bandanas. It is alleged that house arrest did little to curtail his unlawful activities.
3. Inadequacy of Proposed Sureties
T.S.'s uncle and grandmother have had little contact with him since he entered his teens. I accept they are well meaning and love their nephew/grandson. However, they admit they know nothing about the drug/gun culture. Their plan to supervise T.S. and keep T.S. away from computers and cell phones and move him from Parkdale to Etobicoke and their belief that this will somehow insulate T.S. from his past seems unrealistic. I accept the assessment of the Crown that T.S. has moved on and he is a person they no longer know.
4. Substantial Likelihood of Serious Offence
I find that given the youth's recent charges and the circumstances surrounding those charges, that there is a substantial likelihood that if released from custody he would commit a serious offence. The plan of release, as suggested by the defence, would not be sufficient to adequately protect the public from the substantial risk he presents.
[23] Secondary Ground Finding
I am satisfied on a balance of probabilities that detention in these circumstances is justified on the secondary ground.
[24] Tertiary Ground – Cautionary Principles
On the tertiary grounds, one has to be mindful of the following cautionary principles:
Under section 3 of the YCJA, young persons have special guarantees of their rights and freedoms.
There must be exceptional circumstances that warrant detention on the tertiary grounds to maintain confidence in the administration of justice having regard to all the circumstances including:
a. the apparent strength of the prosecution case
b. the gravity of the offence
c. circumstances of the offences, including whether a firearm was used,
d. the fact that the youth is liable, on being found guilty for a potentially lengthy custodial sentence.
[25] Application of Tertiary Ground Factors
My response to the legislative questions set out in Section 29(2)(b)(iii) is:
a. Strength of Crown's Case
In my view the Crown's case is strong because the gun was found in a bag on the door and the drugs in a bag on the bed. The money was found on other persons present in his bedroom.
b. Gravity of the Offence
The gravity of the offence is high given the adult sentence for possession of a loaded firearm is, in the case of a first offender, 3 years. While the mandatory minimum sentence was declared unconstitutional in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, SCC, an adult in possession of a loaded gun and 241 grams of cocaine would be facing a sentence in the range of 3–5 years, in my view.
c. Circumstances of the Offence – Firearm
The firearm was not alleged to have been used, but a loaded gun in a residential home with 8 individuals close by in the same room, creates an undeniable situation of danger.
d. Potential Custodial Sentence
As noted in paragraph b above, T.S. is liable, if found guilty, to a lengthy period of custody in a youth facility for the possession of a loaded gun, a large quantity of cocaine, and $660 as proceeds of crime. The circumstances alleged make it appear that he is heavily involved in the drug subculture even while he was under house arrest and on a condition that he possess no firearms or other weapons.
[26] Tertiary Ground – Balancing Youth Protections
I am mindful that denial of bail on the tertiary ground should only occur in exceptional circumstances and that the public confidence perspective ignores the excitable and irrational citizen and rather, focuses on the confidence of a reasonably informed but dispassionate public (R. v. James, [2006] O.J. No. 394 (OSC)), and that I must act to reinforce a youth's special guarantees of his rights and freedoms under section 3 of the YCJA and that I must presume T.S. is innocent at all time and that I must continue to be aware of the prohibition against punishment through pretrial custody before trial.
[27] Tertiary Ground – Detention Order
Notwithstanding the careful application of all of the youth protections under the YCJA and the Charter, I am still of the view that the Crown has satisfied me on a balance of probabilities that T.S. should be detained on the tertiary ground given that each one of the special circumstances under s. 29(2)(b)(iii) is fully engaged and in play and the circumstances are exceptional due to the allegation a 17 year old under house arrest and on a weapons prohibition is in possession of a loaded 9mm prohibited firearm and a large quantity of cocaine for the purpose of trafficking. A release order under these circumstances would undermine confidence in the administration of Justice.
[28] No Adequate Release Conditions
I am further satisfied, that under section 29(c) of the YCJA, on a balance of probabilities, no conditions of release would adequately protect the public on the secondary grounds or maintain confidence in the administration of justice on the tertiary ground.
[29] Final Order
Accordingly, regrettably, I am required to order that T.S. be detained in custody.
Released: October 4, 2019
Signed: Justice P.J. Jones