Court Information

Information Nos.: 4821-998-18-Y50591-00, 4821-998-20-Y200207-00

Date: July 14, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

X.Y., a Young Person

Before: Justice of the Peace K. Valentine

Heard: June 23 and June 24, 2020

Oral Reasons for Judgment: July 8, 2020

Written Reasons Released: July 14, 2020

Counsel

Laine Y., Counsel for the Crown

Johnson L., Counsel for the accused, X.Y.

Publication Ban

There is a publication ban in place pursuant to section 110 of the Youth Criminal Justice Act.

Reasons for Judgment

K. Valentine, J.P.:

The Charges

[1] X.Y., (a pseudonym) is charged with:

1. unlawfully possessing a restricted firearm, namely a handgun, without a permit, contrary to section 91(1) of the Criminal Code of Canada (hereinafter the "Criminal Code");

2. unlawfully possessing a loaded restricted firearm, namely a handgun, without holding a permit, contrary to section 95(1) of the Criminal Code;

3. discharge a firearm with intent, contrary to section 244(1) of the Criminal Code;

4. failing to comply with a condition of a release, namely not to possess any weapons as defined by the Criminal Code, contrary to section 145(5)(a) of the Criminal Code;

5. unlawfully possessing a firearm, while under an order made under s. 140 of the YCJA, contrary to s. 117.01(1) of the Criminal Code; and

6. possession of a firearm, knowing that the serial number was removed, contrary to section 108(1)(b) of the Criminal Code.

The Allegations

[2] A synopsis of the allegations is found at Tab 8 of the Crown's Bail Book received by this court as Exhibit 1, but for the purpose of the record it is alleged that on Tuesday, May 27, 2020 at approximately 4:08 pm, X.Y. and three male companions were walking along Blue Jay Way near Mercer Street in Toronto. As they approached a waiting vehicle, an unknown male jumped out of another vehicle that pulled up alongside them and opened fire on them. In response, it is alleged that X.Y. retrieved a loaded firearm from within his clothing and returned fire in the direction of the male shooter. A short gun battle ensued and was captured on video from different angles. The assailant took off in a waiting vehicle and remains at large.

[3] X.Y. and two of his three associates ran towards a laneway north of 80 Blue Jay Way. While doing so, X.Y. lost his shoe and subsequently dropped the firearm that he is alleged to have used during the shootout. This is also captured on high quality video surveillance in the area.

[4] Once in the laneway, X.Y. and an associate, later identified as Dimarjio Jenkins, a local Toronto rap artist known as "Whodini" both collapsed as a result of gunshot injuries they sustained during the shootout. Police arrived shortly afterwards. X.Y. sustained a gunshot wound to his leg. Mr. Jenkins later died of his injuries. A third companion of X.Y. also a young person, fled the scene and remains at large. He is wanted by the police for discharging a firearm with intent.

[5] At the time of the shooting, the area had moderate pedestrian and vehicular traffic. High quality video footage shows two women and a young boy being caught directly in the cross-fire. A bullet struck the sidewalk within inches of the young boy's feet and another struck the roadway within a couple of feet of the women. Although they were not injured, another innocent female bystander was struck in the hip by a stray bullet. She was later treated at a hospital and is expected to recover from her injury.

[6] The police recovered 23 shell casings, both 40 caliber casings and 9 mm casings, a handgun with a defaced serial number, being the Glock 9 mm that the police allege X.Y. was carrying and discharging at the time of the shoot out. The Glock was loaded and had one round of ammunition jammed in the chamber.

[7] X.Y. was arrested and charged on May 28th, 2020 at 12:28 am and was held in custody for a bail hearing.

The Bail Hearing

[8] There were three previous dates scheduled for X.Y.'s bail hearing before I became involved.

[9] The first bail hearing was scheduled on June 1, 2020. An affidavit was prepared on May 31, 2020 in contemplation of X.Y.'s mother acting as his surety. The affidavit asserted that X.Y. had an outstanding robbery charge but did not mention his outstanding drug trafficking charge out of Saskatchewan. The affidavit also stated that X.Y. was doing well in school since enrolling in an alternative high school and that he was on track to completing Extra-Judicial Sanctions (hereinafter referred to as "EJS") in relation to the robbery charge. The affidavit was to be sworn before the justice of the peace at the beginning of the bail hearing. However, prior to the start of the bail hearing, Blair Mills, the Extra-Judicial Sanctions co-ordinator in charge of X.Y.'s robbery case out of 2201 Finch Avenue West in Toronto, Ontario provided a letter to the Crown indicating that X.Y. was dismissed from the EJS program due to his failure to attend and complete the assigned workshops.

[10] The Crown also learned of X.Y.'s outstanding drug trafficking charge in Saskatchewan. The Crown informed defence counsel about these new developments resulting in the adjournment of the bail hearing.

[11] A second attempt at a bail hearing occurred on June 3, 2020. This time, a different surety affidavit was prepared for X.Y.'s mother and provided to the assigned justice of the peace. His mother's knowledge and understanding of the Saskatchewan charge was included in this second affidavit. She also noted that since changing schools X.Y. continued to have behavioural issues, including not attending school, staying out late, and sleeping out for multiple nights. The Crown received information that there was an open file with the Children's Aid Society ("CAS") and reported the new charge to the CAS pursuant to its positive reporting obligation under s. 125 of the Child, Youth and Family Services Act.

[12] Before the bail hearing started on June 3, 2020, the assigned CAS worker, Marlon Clarke contacted the Crown and advised that he had received consent from X.Y.'s mother to communicate to the court that she feared for her and her family's safety if X.Y. were to be released into her care. Mr. Clarke also communicated her concern about his negative decision-making, and that she wanted him to undergo a medical or psychological assessment under section 34 of the YCJA in order to better address his issues with decision making and information processing. She feared that he would refuse to submit to such an assessment if he were out of custody. As a result of the new information, the second bail hearing was adjourned.

[13] X.Y.'s bail hearing was rescheduled before another justice of the peace on June 10th, 2020. The proposed sureties included X.Y.'s mother and his maternal grandmother. The proposed release plan would require X.Y. to reside with his grandmother. However, over the lunch break, the grandmother learned that there had been a gun battle at a memorial for Mr. Jenkins, the deceased associate of X.Y., the night before on June 9th, 2020. X.Y.'s grandmother withdrew herself as a surety fearing for her and X.Y.'s safety. The bail hearing was struck at the request of his lawyer.

[14] X.Y.'s 2-day bail hearing finally started before me on June 23rd, 2020. The Crown lawyer, X.Y., his lawyer, his two proposed sureties (his mother and a paternal aunt) and I participated in the bail hearing via teleconference. A registrar and a court monitor were present in the courtroom to maintain the court record.

[15] The parties filed a significant amount of materials electronically by email. Affidavits and copies of the identification for each proposed surety were also provided. They also testified in court under solemn affirmation, following an order to exclude witnesses. Thank you to everyone involved up to this point.

Jurisdiction

[16] A young person is presumptively releasable and the court has no jurisdiction to order the pretrial detention of a young person unless the Crown can establish on a balance of probabilities that the young person is charged with a "serious offence" or; if the offence does not constitute a "serious offence," that there is "a history that indicates a pattern of either outstanding charges or findings of guilt": YCJA, s. 29(2)(a)(i) and s. 29(2)(a)(ii).

[17] A "serious offence" is defined as "an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more": YCJA, s. 2(1). A history that indicates a pattern of either outstanding charges or findings of guilt is not defined in the YCJA; however, the phrase "history that indicates a pattern of findings of guilt" was held to require a minimum of three prior findings of guilt, unless the court can find that the offences are so similar that a pattern can be found in only two prior convictions: R. v. S.A.C., [2008] 2 S.C.R. 675. This has since been interpreted to include outstanding charges.

[18] X.Y.'s lawyer concedes that X.Y. is a young person charged with a serious offence or that there is a pattern of outstanding charges. Accordingly, I am satisfied, on a balance of probabilities, that I have jurisdiction to conduct this bail hearing.

The Law

[19] There is a separate regime in the criminal justice system for young persons aged 12 to 17 years old. This is because of their reduced moral culpability and level of maturity as compared to adults. The Crown always bears the onus, on a balance of probabilities, of proving why a young person should not be released from custody pending a trial. This onus never shifts to a young person to prove why he or she should be released, no matter how serious the charge.

[20] X.Y. is entitled to the same constitutional protections offered by the Canadian Charter of Rights and Freedoms. He has the right to liberty and the presumption of innocence in his favour. Further, X.Y. is entitled to reasonable bail and is not to be denied bail without just cause. A reasonable bail requires the terms of release to be reasonable and no more onerous than what is necessary in the circumstances.

[21] Part XVI of the Criminal Code and jurisprudence (or caselaw) govern the determination of the appropriate form and conditions of release. In the pre-trial context, a release should be granted at the earliest opportunity and in the least onerous manner. In other words, pre-trial detention is the exception. It is a measure of last resort, not the rule. However, pre-trial detention is sometimes necessary and appropriate, if there is just cause to make such an order. The same principles apply to young persons facing pre-trial detention.

[22] There are only three grounds that give a court just cause to detain a young person. They are found in sections 29(2)(b)(i); 29(2)(b)(ii); and 29(2)(b)(iii) of the YCJA:

(b) the judge or justice must be 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.

[23] The Crown is seeking X.Y.'s detention on the secondary and tertiary grounds.

Secondary Ground

[24] The secondary ground considerations differ for a young person charged with a criminal offence than an adult. As it relates to adults, section 515(10)(b) of the Criminal Code refers to the risk of the commission of any criminal offence, whereas the YCJA requires the potential offence to be "serious" as defined by s. 2(1) of the YCJA. Additionally, the Crown must not only establish, on a balance of probabilities, that a) there is a "substantial likelihood" that the young person will commit a serious offence; but that the commission of a serious offence will risk "the safety and protection of the public."

[25] The test of "substantiality" makes it clear that the Crown must demonstrate that the risk of the young person committing a serious offence if released is real or tangible. "[A] slight or theoretical danger to the public" is not enough to deny an accused person bail on the secondary grounds: R. v. Normore, 2018 NLCA 27 at para. 28. The "substantial likelihood" standard, the "serious offence" criterion and the necessity of public protection or safety means that a young person can only be denied a release on the secondary ground in very narrow circumstances.

[26] I have considered a number of factors in analyzing the secondary ground concern, I begin with X.Y.'s outstanding charges and their underlying allegations.

Outstanding Charges

[27] X.Y. was 15 years old at the time of the alleged shootout. He does not have a youth record, but he does have outstanding charges in Toronto, Ontario and Saskatchewan. The charge in Toronto is alleged to have occurred in December 2018, when X.Y. was only 14 years old. It is alleged that while on school property, X.Y. and an adult student robbed another student of his cellphone. The student reported the incident to the principal who notified the police because X.Y. was also suspended from school and was trespassing on school property. X.Y. was released on an Undertaking to a Peace Officer. A condition of the Undertaking is that X.Y. not possess any weapons as defined by the Criminal Code. X.Y. could have resolved the robbery charge by completing EJS but was expelled from the program because of his failure to attend and completed the required courses. A 524 application was granted to cancel the release in relation to the robbery charge.

[28] The drug trafficking charge out of Saskatchewan is very recent. It is alleged that on March 11, 2020 at approximately 2:00 a.m., a loaded firearm was discharged at police officers when they executed search warrants at an address where it was believed that there was drug trafficking in cocaine, fentanyl, and methamphetamine going on. No one was injured. X.Y., and three other occupants were located inside, arrested and charged. Police seized a loaded firearm, shell casings, cell phones and drug-related paraphernalia from the property. When X.Y. was searched incident to arrest, individually wrapped packages of crack cocaine were found on him. He was charged with possession of cocaine for the purpose of trafficking and released on a Release Order of a Young Person. The release order includes a condition that he possess no weapons. X.Y. may face further charges pending the outcome of forensic testing on the firearm. The drug trafficking charge is not subject to the 524 application because it occurred out of province.

[29] X.Y.'s mother testified that she had to take a flight to Saskatchewan to return him to Ontario. She was unaware that he was in Saskatchewan, nor did she know how he got there or who he knew in Saskatchewan. She testified that he told her that his friend bought him the ticket to vacation in Saskatchewan. She did not know about the involvement of a firearm until she was told by the CAS worker.

[30] X.Y. is presumed to be innocent of the robbery and drug trafficking charges, and the charges are based on allegations to be proven at a later stage. However, given that he is the subject of two separate release orders, that both release orders contain a no weapons condition, and he is now charged with firearms-related offences and breaching the no weapons condition in the undertaking, these are aggravating factors to consider under the secondary ground.

The Nature of the Offence and Strength of the Evidence

[31] Although it is not alleged that X.Y. or any of his companions were the aggressors during the alleged shootout that erupted in broad daylight on a moderately busy street in downtown Toronto, he is alleged to have a Glock 9 mm handgun and to have returned gunfire in the direction of the assailant, despite the presence of innocent bystanders nearby.

[32] It is well-established that the strength of the Crown's case appears to be strongest at the bail stage but may wane over time as the evidence is disclosed and tested. In assessing the strength of the Crown's case, I must consider the evidence and any potential defences that might be available to the young person. At this stage, the Crown's evidence against X.Y. is quite strong. The Crown has strong direct, objective evidence to identify X.Y. as a shooter in the gun fight by way of clear video footage. There is also corroborative evidence in addition to the videos, which includes X.Y.'s clothing, his shoes, one of which he loses, and distinct physical characteristics. High definition video footage from different viewpoints places X.Y. temporally and geographically near the alleged crime scene. A video captures him pointing a gun while running. Another video shows him losing a shoe as he is running and subsequently dropping what appears to be a handgun. Another video shows him falling to the ground near where the now deceased, Mr. Jenkins, lay dying in the laneway. A video captures a police officer arriving a short time afterwards and observing them laying on the ground. The firearm was also recovered from the same location captured on the video.

[33] The Crown submits that the firearms offences and the breach offence case is overwhelming. X.Y.'s lawyer submits that the Crown's case regarding the discharge with intent charge is weak, and that X.Y. may claim self-defence at trial because it appears from the video that X.Y. and his companions were targeted and did not initiate the gunfight. The Crown counters that X.Y. could have continued to run away as he initially did and as did one of his companions, but instead turned around and returned gunfire in the direction of the assailant. I anticipate that this will be triable issue to be resolved at X.Y.'s trial. However, at this stage, I find that the nature of the offences X.Y. faces and the strong Crown's case against him are aggravating factors to be considered under the secondary ground risk analysis.

The Background and Comportment of X.Y.

[34] I have also considered X.Y.'s personal circumstances under the secondary ground. He recently turned 16 years old. He was only 15 years old at the time of the alleged shootout.

X.Y. resides with his mother and older sister in a 1-bedroom apartment. It appears from the evidence that his father has little involvement in his life. He is in grade 10 but has an inconsistent attendance record at school and had stopped attending for about one year. CAS became involved with his family because, according to his mother, a neighbour complained after overhearing her shouting at him to go to school. At the time of the alleged robbery of a student at the high school X.Y. was attending, X.Y. was suspended for an unrelated matter. His mother testified that he transferred to an alternative school because he struggled academically due to his learning disability.

[35] There is no evidence that X.Y. is involved in any positive or constructive extra-curricular activities or sports. His mother testified that he once had a paper route with his sister but did not work because he was not yet of age to get a job. From the evidence, he has a penchant for hanging out with men, males much older than his age group. X.Y. was in the company of the deceased, Mr. Jenkins, who was 21 years old, at the time of the alleged gunfight. Although Mr. Jenkins is known to X.Y.'s father's family, X.Y.'s family were unaware that the two were acquaintances. At the time of the alleged robbery in 2018, X.Y. was only 14 years old, but his co-accused is an adult student. He is often away from home for days at a time, with his mother unaware of his whereabouts. His mother testified that on the day of the alleged gunfight, she asked him to stay home. He told her that he was stepping out to buy food and would be returning shortly. When he was supposed to be participating in EJS, she described driving him and dropping him off to his appointments before she went to work, only for him to not attend and return home. This resulted in his expulsion from the EJS program.

[36] Although I cannot say with certainty, there are indicators from the evidence that X.Y. may be involved in gang activity or the illicit drug trade. When he was arrested in Saskatchewan, he told the police that he had two cellphones, although only one was found on his person. Individually wrapped pieces of crack cocaine were found on his person when he was arrested in Saskatchewan. He now faces firearms offences. The caselaw that I have considered draw a link between drug dealing or trafficking and guns. His mother testified that she was aware that he was staying in Hamilton for approximately one month, but he would not tell her where exactly he was staying, with whom, and when he was returning, despite her demands for him to return home. It is unclear how he financially supported himself while he was away from home for one month without a job.

[37] I find these factors to be aggravating considerations in my secondary ground analysis.

Plan of Release and Proposed Sureties

[38] The plan of release presented would require X.Y. to submit to a bail with two sureties. The proposed sureties are his mother and a paternal aunt. Both have filed affidavits stating that they understood their duties and obligations to the Court. They also testified at the bail hearing. X.Y.'s mother would be the primary surety. He would continue to live with her and his older sister but would be subject to house arrest with no exceptions to leave the house unless he is with one of his sureties. His mother was laid off from her job as a housekeeper at a hotel but expects to return to work once restrictions around the COVID-19 virus eases and hotels re-open. She wants X.Y. to continue with his education from home and testified that she will make sure that he does not have access to any weapons because he cannot leave the house without her. She has pledged $2,000.00, half of her savings, to secure her son's release. His paternal aunt lives about a 20 minutes drive away from X.Y.'s residence. She will supervise X.Y. when his mother cannot. She will also regularly check in with her to ensure that he is abiding by the release order. Her role would be more supplementary to support X.Y.'s mother. She lives in a 3-bedroom apartment with her daughter, a sister and her two daughters, and X.Y.'s paternal grandmother. She is employed with a school board as an educational assistant. Her daily work hours are reduced due to COVID-19 but expects to resume her regular work hours in September when an official return to work plan is put in place. She understands her role and responsibilities as a surety because she acted as a surety twice in the past, once for X.Y.'s father. She advised that there were no breaches under her supervision. She has pledged $1,500.00 of her $9000.00 savings for X.Y.'s release.

[39] I find both proposed sureties to be well-meaning. They understand their role and responsibilities as a surety. However, neither of the proposed sureties appear to have more than a superficial understanding of X.Y.'s activities. Their knowledge and understanding of X.Y. have significant gaps. They do not know his friends and contacts outside the family or his whereabouts when he is outside of the home and not with them. They appeared surprised to learn of his continued friendship with the deceased, Mr. Jenkins. I want to make it clear that I do not fault them for this because its not for lack of trying with X.Y.

[40] Moreover, I do not find X.Y.'s mother to be suitable as the primary or principal surety for him. Through her inconsistent testimony, it was clear that she does not have any influence or control over him. X.Y. has shown no hesitation in disregarding his mother's authority. He comes and goes as he pleases despite his very young age. She cannot get him to attend school, court dates, or other commitments. When she drives him to a commitment, he turns around and returns home. When she questions him about his whereabouts or who he is with, he is vague, elusive or non-responsive. He spent a month in Hamilton "chilling out with his friends…playing video games," and would not return home despite her demands. She did not know he was in Saskatchewan in March 2020 until the police telephoned her to advise of his arrest for drug trafficking. She learned from the CAS worker, and not X.Y., that a gun is alleged to have been involved in the Saskatchewan charge. She minimizes his behaviour and deflects responsibility from him. For example, when she is asked during cross-examination, if he listens to her, she stated that X.Y. "follows my rules, but is a stubborn teenager." She testified that she could not even get him out of bed to go to school and blamed it on her small stature.

[41] I am not persuaded that his mother can enforce a house arrest term, or any other terms, I order; nor am I convinced that anything would change, despite defence counsel's submission that a court order would reinforce her authority. He would be returning to the same living arrangement and environment he was in since "getting off track", and to the same person, whom he constantly ignores, disregards and disrespects.

[42] With respect to X.Y.'s aunt, her role is peripheral. From her testimony, she tries to be a positive role model to him, but he ignores her advice. I do not fault her or expected her to know that CAS was involved with the family or that he was charged in Saskatchewan until she was briefed for his bail hearing. These are private affairs within an immediate family. However, she testified that she speaks to X.Y.'s mother about 4 days a week and that they are very close. X.Y.'s mother telephoned her often when she was looking for him and he would not answer or return her calls. I find it surprising then that X.Y.'s mother would not confide in her given their closeness. Her offer to check in regularly as the second surety does not appear to be any different than what was happening before X.Y.'s arrest.

Moreover, the house arrest plan is short-sighted because it does not address the proposed sureties' return to work in the next couple of months, when the stay-at-home order is gradually lifted. The plan is silent on how the significant gaps in X.Y.'s supervision will be filled while his mother and aunt are at work for most of the day. Based on the evidence before me, I do not trust that X.Y. will remain at home unsupervised for several hours during the day.

[43] The success of a release plan also depends on the willingness of an accused person to comply or submit. I doubt that X.Y. will adhere to any rules his sureties or I may set. He did not follow the EJS plan that would have resulted in the robbery charge being diverted and withdrawn. He is now alleged to have breached a condition in the undertaking to a peace officer that he not possess any weapons. Although not included in the 524 application, the Saskatchewan release for the drug trafficking charge also included a condition that he not possess weapons. And while he is presumed to be innocent of the breaches, together they demonstrate the risk that X.Y. will not obey the release and, in particular, a condition that he possess no weapons.

[44] Additionally, defence counsel argues that COVID-19 will result in longer than usual time-to-trial. I find this to be speculative. Moreover, in-custody matters, and youth matters are given priority. Alternatively, if I accept X.Y.'s argument that X.Y. can be waiting for a very long time until his trial is held, given X.Y.'s antecedents, I do not see the benefit of releasing X.Y. on the most onerous form of release – a house arrest bail – with no exceptions and a condition that he have no access to technology or social media as his aunt has requested. As a young person, such a release would be tantamount to setting him up for a breach of his bail.

[45] The proposed sureties do not want X.Y. to have access to technology or social media because they fear for his safety. However, X.Y. will have to access the internet to complete his online home schooling. I am doubtful that X.Y.'s mother can monitor X.Y.'s online presence to ensure that he not access social media, especially when she returns to work.

The YCJA is clear that a young person cannot be detained as a substitute for appropriate child protection, mental health or other social measures: YCJA, s. 28.1. The youth criminal justice system is intended to protect the public by holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person. The goal of youth criminal justice is to promote the rehabilitation and reintegration of young persons who have committed offences, and to support the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour.

The Pandemic

[46] The threat posed by COVID-19 is a relevant factor that I must consider under the secondary and tertiary grounds. The parties concede that the court can take judicial notice that we are experiencing a global health crisis, the COVID-19 pandemic. I am not willing to take judicial notice of, but I accept that congregate living conditions can increase the risk of someone contracting COVID-19 because of challenges around the ability to maintain social distancing. Social distancing is a measure to help control the spread of the COVID-19 virus.

X.Y. does not have any specific medical vulnerabilities that makes him more susceptible to contracting COVID-19. However, he relies on a letter from Dr. Orkin that outlines the effect of the virus on individuals housed in congregate living facilities. According to Dr. Orkin's report they are more susceptible and vulnerable to contracting COVID-19.

[47] I accept the Crown's submission that Dr. Orkin's report does not apply to the Roy McMurtry Centre where X.Y. is being held because it is operating at less than half of its capacity. There were only 50 young persons there as of June 24th, 2020. To date, there has been no reported cases amongst young persons and only one staff tested positively and has since been cleared to return to work. In terms of precautionary measures taken at the facility, there is a screening procedure in place. Each young person has their own room, and only interact with up to 7 people in an area where physical social distancing can be practiced. Since the information note of May 21st, 2020 there have been 12 additional tests for staff members and seven tests for young persons.

[48] I mentioned previously that X.Y.'s lawyer has argued that the pandemic may delay X.Y.'s trial. While this is a valid concern, it is speculative given that in-custody matters and youth matters are given priority, and the courts have resumed the scheduling of preliminary hearings and trials. Unlike many of the cases presented to me for consideration, X.Y.'s bail hearing occurred at the cusp of the stay-at-home order, which is gradually being lifted. Another argument raised by his lawyer is that X.Y. risks spending more time in pretrial custody, if detained than he would if sentenced, if found guilty of the charges. I am not convinced of this likelihood. Although X.Y. is a young person and will be sentenced differently from an adult, he is facing very serious gun charges, with the potential to serve a lengthy sentence if he is found guilty.

Findings

[49] According to the Crown, when assessing the secondary ground in the context of a young person, the strength of the crown's case is not as central as whether the young person has the comportment or potential behaviour to predict how he will behave in the community, if released. The Crown outlined X.Y.'s antecedents and past behaviour as a predictor of future behaviour. The Crown argues that X.Y.'s antecedents includes his personal background and family dynamic, the two outstanding charges, his lack of completion of EJS, his mother's evidence that he does not follow household rules, the short period of time that has elapsed between the Saskatchewan charge and the current charges, the fact that a firearm was involved in both instances, and that the Crown has strong evidence that he was in downtown Toronto with a loaded firearm that he readily used, allegedly, are all factors that demonstrate a pattern of escalating violence and dangerous criminal behaviour.

[50] I am satisfied that the Crown has established, on a balance of probabilities, that X.Y.'s detention is necessary on the secondary ground.

Tertiary Ground

[51] Although the legal test is different when assessing the tertiary ground, I acknowledge that there is some overlap with respect to the factors I have considered and the findings I have made during my secondary ground analysis. However, the tests are distinct. The need to maintain public confidence in the administration of justice, considers the principles in s. 3 of the YCJA, all the circumstances, including:

(A) The apparent strength of the prosecution's case;

(B) The gravity of the offences;

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

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

Unlike the adult regime, there must also exist "exceptional circumstances" that warrant a young person's detention on the tertiary ground.

[52] The Ontario Court of Appeal decision of R. v. W. (R.E.), 79 O.R. (3d) 1 (2006) states at paragraph 43: "The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of an exceptional case is when the circumstances of the offence are shocking to the community." This enhanced procedural protection in cases involving young persons keeps the focus on the principles and objectives of the YCJA, which include "rehabilitation, reintegration and accountability" of the young person, and adheres to the principle that detention be a measure of last resort.

[53] (A) I accept the Crown's description of the strength of its case against X.Y. My previous analysis regarding the strength of the Crown's case under the secondary ground applies to the tertiary ground. There is direct and circumstantial evidence that places X.Y. temporally and geographically at the alleged crime scene. As I previously mentioned, there is clear video footage capturing the events from different viewpoints. Even where triable issues exist and self-defence is available to the charge of discharge firearm with intent, for the purpose of my assessment under s. 29(2)(b)(iii)(A), I would assess the prima facie case against X.Y. in relation to the prohibited firearms offences as being very strong.

(B) With respect to the gravity of the offence, the court must determine the "objective" gravity of the offence in comparison with other offences in the Criminal Code. Consideration should be given to the maximum available sentence, as well as any minimum sentences, provided in the Criminal Code. The firearms offences which X.Y. faces, exposes him to sentences of 3 to 10 years for the restricted firearm offence and 5 to 14 years for the discharge firearm with intent, alone or in combination with the charges. These are considerable penalties relative to the penalties to most other offences in the Criminal Code. Accordingly, I find X.Y.'s charges to be objectively grave.

(C) The circumstances surrounding the commission of the offence are aggravating. They involve the alleged discharge of a firearm on a busy street in downtown Toronto with steady pedestrian and vehicular traffic during the COVID-19 pandemic, when people were ordered by the government to stay home for non-essential purposes to curb the spread of the virus.

The Criminal Code includes an exhaustive list of offences, but only the use of a firearm is mentioned in this arm of the test. It is not coincidental that Parliament chose to explicitly mention firearms, and no other offence, in s. 29(2)(b)(iii)(C) of the YCJA. The Crown provided caselaw that highlight the contempt of guns in society. Justice Dellandrea in the unreported decision of R. v. Morgan (October 28th, 2019 (O.C.J.) states at paragraph 36 that "firearms have no place in a safe and civilized society. By their very existence, firearms undermine the core values of safety and freedom which underpin our existence, and which Canadians are entitled to expect. People should expect that their concerns around firearms, and their safety, will be considered by the courts in their consideration of those who are found to be in possession of deadly weapons in the public realm." She further states at paragraph 37, "the risk of inflicting catastrophic harm to another with a gun is "all too easy." By its very design, a firearm's capacity to cause so much damage, with so little foresight or effort, is among the features which makes it deserving of heightened concern and attention by the court." Moreover, notwithstanding the government's order to stay home, X.Y. clearly chose to be out of his house. "[T]he risk of contracting the potential deadly virus, or infecting members of his family, didn't seem to alter his conduct on [May 26, 2020]." [1] I further paraphrase Justice Callaghan's observation at paragraph 35 in R. v. K.A., "the state of emergency has not reduced the level of gun violence in the city. The number of shootings is up from last year. This context must form part of the tertiary ground analysis," especially when considering the COVID-19 pandemic.

(D) X.Y. is liable on being found guilty of the firearms offences to a potentially lengthy custodial sentence. However, I have also considered that X.Y. is a young person and will not be sentenced as an adult. As I mentioned previously, defence counsel has asked that I consider that X.Y. could potentially spend more time in pre-trial detention than he would serve as a custodial sentence, if found guilty: R. v. Whyte, 2014 ONCA 268. This is speculative. The scheduling of trials and preliminary hearings have resumed as of July 6, 2020. If X.Y. is detained, his case will be given priority because he is a young person in custody. I expect that X.Y. will be able to move his case along.

Other Considerations

[54] Firearms offences do not automatically warrant a detention. Indeed, the case of R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paragraph 69 requires the court to consider all the circumstances of the case, of course, paying particular attention to the four enumerated grounds. X.Y. is of a very young age. I have also considered his personal background, including his comportment, his relationship with his mother that required the intervention of the Children's Aid Society, his lack of positive ties to school or the community, the outstanding criminal charges and release orders, the current charges before the court including the underlying allegations, the proposed plan of release and potential sureties, and the COVID-19 pandemic from a health perspective and from a systemic perspective. I reviewed the Crown's Bail Book and Book of Authorities, the video footages and photographic stills capturing the shootout from different vantage points, the cases provided to me by X.Y.'s lawyer and Dr. Orkin's letter tendered on his behalf.

Exceptional Circumstances

[55] Finally, I am required to consider whether X.Y.'s case involves exceptional circumstances that warrant his detention to maintain confidence in the administration of justice. This consideration exists as a safeguard in the tertiary ground analysis involving young persons to ensure that they are detained in only the narrowest of circumstances.

[56] I appreciate that X.Y. and his companions were targeted by a gunman, but I do not see how X.Y.'s returning gunfire with a Glock 9mm handgun which he quickly retrieves from within his clothing, in broad daylight, on a public street with steady pedestrian and vehicular traffic, in a major city, within direct proximity of a 6 years old child and other innocent bystanders, resulting in himself and an innocent woman getting shot and a 6 year old boy narrowly missing a bullet, all of which is captured on video, during a global health pandemic where we are told to remain indoors except for essential purposes, does not involve exceptional circumstances that would shock the community. It is also troubling that X.Y., despite being only 15 years old, is the subject of two release orders for outstanding charges, where the underlying allegations for one of those charges involve a firearm.

[57] Returning to the St-Cloud analysis, no single circumstance is determinative, and the court must not order detention automatically. Instead I must balance all the circumstances and factors together from the perspective of a reasonable member of the community. A reasonable member of the community is someone who is properly informed about the philosophy of the legislative provisions and the values of the Charter and the specific circumstances of the case. After I complete this exercise, I must then ask myself whether detention is necessary to maintain public confidence in the administration of justice. In light of the principles of s. 3 of the YCJA, all the circumstances, including the enumerated factors, and any exceptional circumstances, I find that the Crown has demonstrated, on a balance of probabilities, that X.Y. must be detained to maintain confidence in the administration of justice.

No Viable Alternative to Detention: s. 29(2)(c) of the YCJA

[58] Another safeguard to prevent X.Y.'s detention as a young person, requires me to consider if there are any viable alternatives to X.Y.'s detention pursuant to s. 29(2)(c)(ii) and (iii) of the YCJA.

[59] I find that the Crown has established on a balance of probabilities that there is no viable alternative to X.Y.'s detention. In arriving at this conclusion, I am guided by the ladder principle in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509. I have considered the least restrictive form of release to the most onerous form of release. X.Y. is subject to two releases. One is an undertaking to a peace officer, which is one of the least onerous forms of release. It required X.Y. to supervise himself or self-regulate his behaviour. A condition of the undertaking is that he possess no weapons. He is now alleged to breach that condition. The release from Saskatchewan, includes a surety. The court received no information about this person, and it is unknown how involved they were in supervising X.Y. up until May 26, 2020. It would be inappropriate to release X.Y. to a bail that did not involve the supervision of a surety.

[60] Counsel for X.Y. has proposed the most restrictive form of release for my consideration. It involves a full house arrest without exceptions, unless X.Y. is with one of his sureties. Counsel suggests that this would be the first time that X.Y. would be subjected to a very strict surety bail, and that this plan addresses the requirements of sections 29(2)(c)(ii) and (iii).

[61] The court would be required to include a condition that X.Y. not possess any weapons as defined by the Criminal Code. X.Y.'s mother testified that she would ensure that he does not have access to guns because he will not be allowed to leave the house without her. However, I am concerned that X.Y. will not abide by a no weapons condition. Two other courts have already included this condition in their release order, yet X.Y. now finds himself accused of being in possession of and discharging a loaded firearm. X.Y.'s mother and his aunt testified that they have heard rumours that X.Y.'s safety is at risk. I suspect that so long as the assailant remains at large, X.Y. will feel unsafe. If released, I suspect that X.Y. will want to protect himself or seek revenge, even if he must remain in his residence at all times. I cannot take for granted the strong likelihood that X.Y. will arm himself again, putting the safety and protection of the public at risk.

[62] X.Y.'s aunt has requested that I impose a condition that he not have access to social media or technology, if he is released. As I explained to her, the court can only impose a condition that has a connection to an offence and the underlying allegations. I heard of none during the bail hearing. She fears that he might post online his whereabouts or that he is out of custody, which could compromise the safety of X.Y. and his family. However, X.Y. will have access to technology and the internet because his mother wants him to continue with his online education. Moreover, when she returns to work and will be out of the home for most of the day, X.Y.'s computer usage will be unmonitored. This is yet another example of the short-sightedness of the proposed plan of release.

[63] I have already stated my reasons during my secondary ground analysis as to why I find X.Y.'s mother unsuitable to be his principal surety and my difficulty accepting the proposed release plan. Those same findings apply to the tertiary ground and my analysis here, too. In short, there is no condition or combination of conditions that can offer adequate protection to the public from the risk that X.Y. might otherwise present; or to maintain confidence in the administration of justice.

Responsible Person

[64] Finally, before I can order X.Y.'s detention on the secondary and tertiary grounds, I am required to canvass the availability of a Responsible Person: YCJA, s. 31(2). I did this at the start of the bail hearing to give X.Y.'s mother adequate time to apprise herself of what it means to be a Responsible Person and the risks involved, and for her to obtain independent legal advice. X.Y.'s mother did obtain independent legal advice and testified that she is willing to act as a Responsible Person for X.Y., in order to avoid his detention.

Being a Responsible Person involves is a written undertaking reinforced by penal consequences in the event of a breach of the undertaking. Unlike a bail, where a breach can result in a forfeiture of the monies pledged, a Responsible Person risks going to jail if there is a breach of the undertaking. A responsible person must be willing and able to take care of and exercise control over a young person, and in turn, the young person must also be willing to be placed in the care of that person.

[65] X.Y.'s lawyer submits that his mother is willing and able to act as a Responsible Person for him. However, for the reasons I stated previously, I do not find that she is able to exercise control over him. Due to this finding, it is not necessary for me to continue with whether X.Y. is willing to be placed in his mother's care as a Responsible Person.

Conclusion

[66] In conclusion, I am satisfied that the Crown has met her onus, on a balance of probabilities, that X.Y. should be detained on the secondary and tertiary grounds. There are no conditions or combination of conditions that can offer adequate protection to the public from the risk that X.Y. might otherwise present; or to maintain confidence in the administration of justice. X.Y.'s mother, although willing, is unable to exercise control over him as a Responsible Person. Accordingly, I order X.Y.'s detention on both grounds.

[1] The quote is taken and altered from R. v. K.A., [2020] O.J. No. 1700, para. 34.