Court File and Parties

COURT FILE NO.: Y C-19-50000078-00BR DATE: 20190606 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – L.L.

Counsel: Robert Kenny and Sarah Leece, for the Crown Stephen Bernstein and Karen Symes, for L.L.

HEARD: May 15, 2019

R.F. GOLDSTEIN J.

REASONS on bail hearing

[1] “Club Lifted” is an illegal marijuana dispensary. On October 2 2018 Dwayne McMillan was working there. Mr. McMillan’s job was to work the front door and control access. He was shot to death by an unknown male that day. The shooting took place during what appears to be a robbery gone wrong. There were four people involved in the crime. The police have identified two of them. One of them is L.L. L.L. is clearly on video as a participant.

[2] The police arrested L.L. He is charged with second degree murder. The Crown alleges that L.L. was involved in the murder of Mr. McMillan as a party. The police do not allege that L.L. was the shooter. At trial, his degree of culpability, if any, will likely be the issue.

[3] L.L. now applies for bail. L.L. is a young person. He is only 16 years old. On May 21 2019 I ruled that L.L. would be released on bail. I indicated that my reasons would follow. These are my reasons.

The Offence

[4] At 8:37 pm a Ford Taurus arrived in the parking lot at Club Lifted. The driver parked the Taurus in different spots. Eventually the driver parked the Taurus near the front door of the club. The Taurus had been stolen earlier that day. There were four people in the Taurus. One of the four is alleged to have been L.L. Another of the four is alleged to be J.C. The police have not identified the other two people.

[5] Surveillance videos captured much of what happened next. It all happened very quickly. At 9:31 L.L. and an unidentified male got out of the Taurus. The unidentified male’s face was covered. L.L.’s face was not covered. He was wearing a blue Toronto Raptor’s shirt, a white t-shirt, and a black leather jacket. An employee of the dispensary later identified him as “Luke” from 1901 Sheppard Avenue West. L.L.’s mother also identified him in the video when the police showed it to her. L.L. approached the door of the dispensary. He knocked on the door. In the meantime, the other unidentified stayed off to the side. The unidentified male had a handgun. Mr. McMillan opened the door. L.L. tried to get inside the dispensary and push Mr. McMillan out of the way. As that happened the unidentified male also struggled with Mr. McMillan. A second unidentified male came over, as did J.C. J.C. was carrying what appeared to be a rifle. During the course of the ensuing struggle Mr. McMillan was shot with the handgun. The police later recovered one shell casing from the scene. J.C. has been arrested and is in custody. The police do not believe that the rifle carried by J.C. fired the fatal shot.

[6] After the shooting surveillance video captured images of the Ford Taurus entering Wedge Court at 11:30 pm. Two people got out of the Taurus and walked out of the area. About ten minutes later, two people were observed at 1901 Sheppard Avenue West. L.L. and J.C. both lived in the apartment complex at 1901 Sheppard Avenue West. The two people went to Apartment 212. Apartment 212 was the residence of J.C. L.L. left J.C.’s apartment shortly after midnight and went to his own apartment. L.L. lived at Apartment 501.

[7] Earlier in the day on October 2, 2019, prior to the murder, surveillance video at 1901 Sheppard Avenue captured images of L.L., J.C., and two other people. L.L. was wearing a blue Toronto Raptor’s shirt, a white t-shirt, and a black leather jacket. J.C. was observed on a cell phone. The two other people were in or near Apartment 212. Later surveillance video captured images of the four people, including L.L., walking towards Wedge Court.

[8] The next day, October 3 2018, at 10:15 pm, J.C. and another person rode bikes from 1901 Sheppard Avenue West to an Esso station. J.C. purchased gas in a red jerry can. J.C. and the other person rode their bikes towards Wedge Court. A short time later the Taurus was set on fire. The Crown alleges that L.L. and J.C. set the car on fire.

[9] The police subsequently arrested L.L. The police also executed a search warrant at his home. The police found 16 rounds of ammunition hidden in a sock in L.L.’s room. The ammunition was of different types and calibers. None of the rounds matched the round that killed Mr. McIntyre.

L.L.’s Background

[10] L.L. is charged as a youth, although the Crown has indicated that it will seek an adult sentence. He is 16 years old. He will be turning 17 shortly. He has been detained at the Roy McMurtry Youth Centre since his arrest. He was born and raised in Toronto. Prior to his arrest he was attending – sporadically, it seems – Downsview Secondary School. He attended programs and played basketball at his neighbourhood church. He has continued high school at Roy McMurtry. During his time at Roy McMurtry he has attended classes and programs and appears to have done well. He has not been found guilty of any institutional misconducts. L.L. has a medical problem. He has a right undescended testicle. Apparently, he is at risk of developing testicular cancer if it is not treated. He requires surgery. It is not clear to me how urgent it is that he have surgery, but the medical evidence suggests it cannot be postponed for a long time.

The Proposed Plan of Release

[11] Mr. Bernstein proposes that L.L. be released to return home. Given the serious nature of the charges L.L. will be on a house arrest, and only permitted to leave home in the company of one of his sureties. He will not be permitted access to a cell phone or to social media. His, mother, A.L., will be the chief residential surety. Two other sureties, William Sunberg and Kevin Motarim, will also monitor L.L. They are both pastors. They work in the neighbourhood. Their church, the Emmanuel Church of the Nazarene, is only a few blocks from 1901 Sheppard Avenue West. Pastor Sunberg is the chief clergyman at the Church. Pastor Motarim runs the youth programs. They both know L.L. and his family.

[12] There was no clear plan presented to address L.L.’s education. Mr. Bernstein’s view was that since it is almost summer, that could be addressed later by way of a bail variation. Mr. Bernstein also asked for an exception to the house arrest for medical appointments and surgery.

Issues and Analysis:

[13] In my view, there are three issues to be determined here: first, should L.L. be detained on any of the grounds set out in the Code and the Youth Criminal Justice Act? Second, is Ms. L an appropriate surety? And third, is there an appropriate plan of release?

(a) Should L.L. be detained?

[14] Crown counsel argues that L.L. should be detained on the YCJA equivalent of the secondary and tertiary grounds. Crown counsel argues that second degree murder is obviously an extremely serious offence. L.L. was a participant in a crime that resulted in the murder of another person. Moreover, the police found 16 rounds of ammunition in a sock in his room. He faces a lengthy sentence of imprisonment. The Crown’s case against L.L. is very strong. The Crown concedes that there is no issue on the primary ground, and that the secondary ground is not that critical. On the basis of the murder and the ammunition, however, the Crown argues it has met the onus on the tertiary ground. L.L.’s mother, Crown counsel acknowledges, is an honest and decent person. He argues, however, that she has not been strong enough to properly supervise L.L. prior to the murder. There is evidence that L.L. has flouted his mother’s rules and advice. The plan, therefore, is not sufficient.

[15] I respectfully disagree with the Crown. I find that the Crown has not met its onus on any of the grounds set out in s. 29(2) of the YCJA.

[16] The youth criminal justice system is designed to deal with offenders very differently from the regular adult justice system: s. 3(1)(b) of the YCJA. The broad purpose of the YCJA is to protect the public by encouraging the rehabilitation and reintegration of youthful offenders while holding them accountable for their actions and referring them to appropriate programs and institutions: s. 3(1)(a) of the YCJA. The YCJA reduces reliance on incarceration at all stages of a criminal proceeding: R. v. D.R., 2010 ONCA 899, 106 O.R. (3d) 755 at para. 41. There is a strong presumption of release under the YCJA: R. v. K.K., 2019 ONSC 704 at para. 14.

[17] The youth criminal justice system also emphasises several things that are different from the regular adult system: one key difference is that there are no reverse-onus bail offences for youth. Not even murder is a reverse-onus offence. The Crown has the burden to show that detention is required: s. 29(3) of the YCJA. Another key difference is that even if the Crown does show that detention is justified under s. 29(2) of the YCJA, an accused youthful offender can be placed in the care of a responsible person where the appropriate conditions are met: s. 31(1) of the YCHJA.

[18] My colleague Harris J. canvassed the differences between the youth and adult bail schemes in detail in K.K. at at para. 16. I adopt his observations.

[19] Section 29(2)(b) of the YCJA creates three grounds of detention that are roughly analogous to the primary, secondary, and tertiary grounds in s. 515(10) of the Criminal Code. The detention provisions only apply to youthful offenders who have been charged with a serious offence, or who have a pattern of outstanding charges or findings of guilt: s. 29(2)(a) of the YCJA. The detention provisions clearly apply here. L.L. is charged with murder.

[20] The Crown does not suggest that there are primary ground concerns. I agree.

[21] The secondary ground requires that the Crown to show on a balance of probabilities the necessity of detaining the youth for the protection or safety of the public. The judge must have regard to all the circumstances, including the likelihood that the youth will commit a serious offence: s. 29(2)(b)(ii) of the YCJA.

[22] As I indicated to the Crown during the hearing, there is no evidence that L.L. is at risk for committing a further serious offence. He has never had a youth disposition. He has never been charged with a criminal offence. Mr. Kerry, for the Crown, maintained his position on the secondary ground, but quite fairly acknowledged that the Crown’s position was not especially strong.

[23] The tertiary ground imposes a very heavy burden on the Crown in the youth context, as Mr. Kerry again very fairly acknowledged.

[24] The tertiary ground requires the Crown to show on a balance of probabilities that:

• There are exceptional circumstances that warrant detention; and,
• That detention is necessary to maintain confidence in the administration of justice.

[25] In examining the tertiary ground, a judge or justice must have regard to the principles set out in s. 3 of the YCJA. I have already mentioned some of those principles. The judge or justice must have regard to all the circumstances including:

• The apparent strength of the Crown’s case;
• The gravity of the offence;
• The circumstances of the offence, including whether a firearm was used;
• The potential for a lengthy period of imprisonment.

[26] Additionally, the judge or justice must be satisfied on a balance of probabilities that no condition or conditions would, in the case of the tertiary ground, maintain confidence in the administration of justice.

[27] In R.D., Rosenberg J.A. noted that a youthful offender will rarely be detained on the tertiary ground. That is so even where the charge is murder: paras. 48-49. Rosenberg J. came to that conclusion based on his analysis of the scheme of the YCJA. There is no question that the YCJA directs judges to incarcerate only as a last resort: R. v. D.R., 2010 ONCA 899 at para. 31; R. v. S.A., 2004 ONCJ 184 at para. 10.

[28] Is that observation good law in light of R. v. St. Cloud, 2015 SCC 27? In that case, Wagner J. (as he then was) canvassed the tertiary ground on behalf of the Supreme Court of Canada. Wagner J. noted that the tertiary ground of detention is not limited to exceptional circumstances. That is quite different from the tertiary ground under the YCJA. As I have noted, the tertiary ground requires exceptional circumstances: K.K. at paras. 47-49.

[29] When I apply the four factors, I find that the Crown has a strong case in the sense that L.L. participated in the killing. It is not clear, however, that the Crown has a strong case on a charge of murder. L.L. was not the shooter. The Crown may have challenges on issues of party liability or aiding and abetting. Nonetheless, the Crown has a strong case on a major crime, whether it is manslaughter, murder, or attempted robbery.

[30] Mr. Bernstein argued that L.L. was a dupe. I cannot say, based on the evidence before me, whether that is the case. It certainly seems possible.

[31] Regarding the gravity of the offence, it is clear that any criminal liability associated with this killing is very serious. The fact that a firearm was used is also an important factor on the tertiary ground. Finally, I note that it is the Crown’s intention to seek an adult sentence on L.L. If the Crown succeeds both in obtaining a conviction for second degree murder and an adult sentence, L.L. faces a potential sentence of life imprisonment.

[32] That said, I do not see exceptional circumstances in this case. In addition to the statutory factors, I make the following observations:

• L.L. has no criminal record, has never been charged with an offence, and is not on any releases;
• L.L. faces extremely serious charges but he is not alleged to be the shooter and was not carrying a firearm. I think it is likely he was aware that a firearm was to be used in carrying out what seems to have been intended as a robbery. The level of his culpability will be the key issue. It is a strong Crown case in the sense that L.L. was surely involved in the crime, but it is difficult to evaluate the case for murder as opposed to some lesser offence based on the evidence before me;
• Based on the synopsis, the Crown seems to have a challenging case on the arson charge;
• The YCJA strongly presumes that young people will be released pending trial; and,
• The least restrictive form of bail possible should be imposed unless the Crown can show otherwise: R. v. Antic, 2017 SCC 27 at para. 4.

(b) Is Ms. L. a proper surety?

[33] Crown counsel argued that Ms. L is not an appropriate surety. He had concerns that she has not properly supervised her son in the past. Crown counsel is concerned that L.L. has not always listened to his mother. After the shooting incident Ms. L. counselled her son to stay away from J.C.. He did not listen to her advice. Moreover, at some point it became apparent that L.L. was skipping school on a regular basis. It is not clear that Ms. L. did anything about that. He argues that she cannot appropriately supervise her son.

[34] The Crown’s concerns are not without force but I respectfully disagree. The Crown accepted that Ms. L. is a well-meaning and honest person. After watching her testimony I agree. Crown counsel’s criticism is, in essence, that she is not a strong parent. She may not be, but I am not prepared to say she is not a proper surety.

[35] That is because, prior to this charge, L.L. was a teenage boy who had never been in trouble with the law. He had never been arrested. Someone had fired a shot at him and his friend. It is not clear if the shot was meant for someone or was random. L.L. gave a statement to the police. The evidence before me is that this was his only encounter with the police prior to this charge – and it was as a victim.

[36] Under those circumstances, Ms. L.’s parenting is not a basis to disqualify her as a surety. L.L. might not have been the best student, but there is no evidence that he was an out-of-control teenager, or was regularly using drugs or alcohol. He was evidently attending programs at his church, as Pastor Sunberg and Pastor Motarim testified.

[37] Anyone who has ever parented a teenager and also attended law school knows that parenting a teenager is vastly more difficult. I don’t think we should be too critical of Ms. L.’s parenting.

[38] In R. v. J.K., 2017 ONCJ 500 Gage J. of the Ontario Court of Justice faced a similar argument. In that case, a 17 year old girl was charged with second degree murder. Her parents had practically no success controlling her prior to the charges. She had peregrinated between unknown addresses and home and occasionally worked as an escort. Gage J. noted that the situation is different where sureties have court ordered tools of compliance and enforcement. I agree with that observation.

[39] Accordingly, I find that Ms. L. is an appropriate residential surety for L.L.

(c) Is there an appropriate plan of release?

[40] Crown counsel argues that the plan of release is not adequate, mostly because of Ms. L. Crown counsel also points out that the roles of Pastor Sunberg and Pastor Motarim are someone amorphous and undefined, although he accepts that they are potentially strong sureties.

[41] I have already dealt with Ms. L. Pastor Sunberg and Pastor Motarim are both very impressive community leaders. Mr. Kerry did not suggest otherwise. It is clear that they have taken an interest in L.L. and are prepared to back up Ms. L., take L.L. to programs at the church, and visit L.L. in his home in order to supervise him. Both clergymen testified that they believe that L.L. respects them and will listen to them. They are both known in the community for doing good works. In my view, Pastor Sunberg and Pastor Motarim are appropriate sureties for L.L. Their supervision, combined with a house arrest provision, will provide adequate supervision for L.L.

Disposition

[42] On May 21 2019 I ordered that L.L. be released on terms and conditions. Those terms and conditions are set out in the release. In essence, L.L. is to be released on a house arrest with Ms. L. as a residential surety and Pastor Sunberg and Pastor Motarim as the other sureties. L.L. is not to leave his residence except to attend court and for medical appointments. He is also permitted to be outside of his house for his surgery. L.L. is also to participate in such programs as are designated by his sureties.

R.F. Goldstein J. Released: June 6, 2019