COURT FILE NO.: YC-19-1417
DATE: 2019 02 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. K.(K.)
BEFORE: D. E. Harris J.
COUNSEL: D. S. Allison for the Crown Respondent
R. Vijan for the Applicant K.
BAIL REVIEW ENDORSEMENT
INTRODUCTION
[1] K.(K.), a young person as defined by the Youth Criminal Justice Act (YCJA), makes application under Section 520(1) of the Criminal Code to review his bail detention order made by Justice P. Renwick on October 26, 2018 (reasons at R. v. K.K. 2018 ONCJ 751, [2018] O.J. No. 5616). On the basis of a material change in circumstances, I would allow the review, vacate the detention order and substitute a release order requiring a strict house arrest bail with two named sureties.
[2] The applicant is charged with three bank robberies and associated offences committed May 10, 2018, May 15, 2018, and May 25, 2018 in Mississauga. It is alleged that he was the “wheel man.” The robberies were carried out with an imitation firearm. In the first robbery, an eyewitness got the licence of the getaway car, a black BMW. This apparently is the applicant’s parent’s car. The third robbery also featured a black BMW but the licence plate number was not seen. At the time the applicant was on an undertaking from another charge of robbery which has since been diverted and withdrawn. He also acquired a mischief charge during the course of the initial robbery charge.
[3] A few weeks after the bank robberies, on June 12, 2018, he was observed at St. Joseph’s school on multiple occasions which was a violation of his bail release.
[4] On June 16, 2018 he was arrested for the bank robberies. On June 27, 2018 he was released on a house arrest bail with respect to the robberies and breaches in the amount of $4,000. Encompassed by this bail as I understand it, was another breach of bail alleged as a curfew breach committed May 25-26, 2018.
[5] After his bail release on the robberies and bail breaches, on October 11, 2018, the applicant was found in the stairwell of an apartment building with some other young men. Marijuana smoke was in the air. K. gave the police a false name. He was violating his house arrest. He was arrested and charged with breach of recognizance and obstruct police.
[6] On the heels of this breach, he was brought before the court and eventually, on October 22 and 25, a bail hearing was conducted. The previous bail was revoked under the authority of Section 524 of the Code. On October 26, 2018, he was detained in custody on the secondary and tertiary grounds by Justice Renwick. This is the detention order sought to be reviewed in this proceeding.
HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?
[7] The applicant stakes his review on a material change of circumstances: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 122-139. The change, he argues, is the tendering of two fresh sureties to replace the sureties found to be unsuitable by Justice Renwick.
[8] In the bail hearing below, the applicant’s parents were proposed as sureties. Justice Renwick roundly criticized both their suitability and credibility in his judgment. A cross-section of his comments with respect to the sureties is as follows:
E.K. [the applicant’s father] testified that he felt badly when he learned that his son had been arrested for breaching his house arrest bail. I found this odd. Rather than feeling anger that his son had apparently taken advantage of one of the few times he had been left in his older brother’s care…
At times during cross-examination, E.K.’s evidence was unhelpful. …
There were also two parts of Mr. K.’s cross-examination which belie his ability to act as a surety. …
At other points, Mr. K.’s evidence was simply not believable. …
In the end, I have little confidence that E.K. fully appreciates the obligations of a surety, the requirements of strictly following a bail order, or the significance of these allegations. He seemed to make every allowance for his son because of his perception of the weakness of this prosecution.
M.K. [the applicant’s mother] also testified poorly. There was a consistency as between the young person’s parents to remain steadfast in their support and their certainty of his innocence of all allegations despite any level of proof to the contrary. …
As well, during M.K.’s testimony, there was an almost stubborn insistence on claiming her son’s innocence. Initially, Ms. K. said that she could “prove” her son was innocent. …
There were other parts of her evidence which were equally unrealistic and implausible. After considering all of the evidence, I find that M.K. is not a reliable historian, a candid witness, or a responsible surety.
On the basis of all of the evidence, including the photographs of the young person out past his curfew standing on the family car, and in light of the alleged recent breach of the house arrest bail, I find that the defendant is not committed to respecting his parents or the court. I am doubtful that the young person would respect any order imposed by this court unless it involved 24 hour supervision by one or more responsible adults.
iv. The young person has enablers rather than parents. The young person’s parents disagree with the allegations, shift responsibility away from their child, and refuse to see the significance of their lack of supervision and their attitudes as contributing factors to the young person’s ungovernability.
[9] The two new sureties, as the Crown was compelled to concede, are an enormous improvement on the applicant’s parents. Do two new and vastly improved sureties in these circumstances establish a material change in circumstances?
[10] The law is clear that the new sureties proposed cannot be simply a “reshuffling of the deck” as Justice Hill put it but must be responsive to the reasons detention was ordered below and potentially alter the decision to order detention: R. v. Amagyei, 2018 ONSC 7544, at paras. 14-17 (publication ban in effect until the trial is completed), St. Cloud, at paras. 135, 137.
[11] In St. Cloud the Chief Justice said,
137 Finally, the fourth Palmer criterion [is]: the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) Cr. C. The new evidence must therefore be significant.
Also see R. v. Whyte 2014 ONCA 268, [2014] O.J. No. 1633, at para. 26.
[12] Justice Hill in the same breath as his “reshuffling the deck” comment, said with his usual clarity (R. v. Ferguson [2002] O.J. No. 1969 (S.C.) at para. 17):
Only where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention. For example, in Regina v. Baltovich (2000), 2000 5680 (ON CA), 131 O.A.C. 29 (C.A.) at 33, Rosenberg J.A. considered the post-detention changes in surety availability to be significant enough to constitute a material change.
[13] Was the inadequacy of the sureties a significant reason for the detention order below? I think the answer must be yes.
[14] The YCJA modifies the adult bail provisions fundamentally. In the end, relative to the adult provisions in Section 515(6) and (10), there is a much stronger presumption of release under the YCJA. This is what one would expect in light of the independent and enlightened approach to young people mandated by the YCJA.
[15] The bail regime in the YCJA is found in Section 29(2) and (3):
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 of the offence, including whether a firearm was used, and
(D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and
(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),
(i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,
(ii) offer adequate protection to the public from the risk that the young person might otherwise present, or
(iii) maintain confidence in the administration of justice.
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.
(Emphasis Added)
[16] 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(i)).
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)(b)(ii)).
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
[17] The subpar sureties did not figure explicitly into Justice Renwick’s reasons to detain on the secondary and tertiary grounds. However, Justice Renwick did make reference to the inadequate sureties in examining Section 29(2)(c)(i)-(iii) which can, in effect, “save” violations of the primary, secondary and tertiary grounds by injecting bail conditions and responsible sureties.
[18] In his reasons considering this subsection, Justice Renwick stressed in emphatic terms that the applicant’s parents were not suitable sureties:
…each parent acknowledged that they had tried to enforce the young person’s bail order when they were not the surety, without success. How is it more likely that the young person would comply with a bail order inclusive of both parents as his sureties when he has twice failed to comply with prior bail orders when these same parents were supervising him?
Moreover, I am satisfied on a balance of probabilities that the young person’s parents are unable to act as sureties in this matter for the following reasons:
i. Both parents are not responsible supervisors of their son. Their individual and combined failures to enforce the prior bail orders proves the point. I agree with the prosecutor that their unwillingness to remove their rose coloured glasses impairs their ability to see red flags;
ii. Neither proposed surety fully appreciates the seriousness of the allegations, the strength of the prosecution’s case, nor their own responsibilities and short-comings as sureties; and
iii. The young person’s parents have no current assets to satisfy a pledge of bail. Despite their evidence to the contrary, which I reject as unfounded and implausible, I am not satisfied on a balance of probabilities that any family member will be willing to offer them several thousand dollars to fulfill their past broken pledges if estreatment hearings are commenced or to satisfy a new bail order in the amount of $4000.
[19] Looking at the judgment’s approach to the sureties put forward, the advent of new and better sureties upon review constitutes a material change of circumstances. There are two reasons. In a general sense, the negative focus on the applicant’s parents at the original bail hearing coloured the entire proceeding in a decidedly negative way. In reading Justice Renwick’s reasons, it is difficult to extricate surety suitability from the analysis of the two grounds for detention. As the excerpts reproduced above demonstrate, the applicant’s parents cast a long shadow on his prospects for release.
[20] More specifically, as evident from the passages quoted above at paragraph 18, Justice Renwick, in examining the “saving” provision in sub. c, relied heavily on the unsuitability of the sureties. If the sureties had been suitable, the mitigation of the secondary and tertiary grounds may well have been successful and led to release.
[21] The material change in circumstances criterion for an accused person should not be applied mechanically or rigidly. There is far too much at stake. Justice Doherty held a number of years ago that the bail review provisions "favour flexibility and re-evaluation of the accused's bail status over finality of any particular order made affecting that status." R. v. Saracina (1989), 1989 7197 (ON SC), 47 C.C.C. (3d) 185 (Ont.S. C.), at p.187.
[22] In conclusion, a material change in circumstances is established. Having found a material change, I must now re-evaluate de novo the secondary and tertiary grounds. This follows from the Chief Justice’s comments in St. Cloud:
138 If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision.
THE NEW SURETIES PROPOSED
[23] The Crown concedes that the new sureties put forward are sincere and well-meaning. I agree. I also find that they will perform their supervisory obligations well and with integrity.
[24] Sajjad Sarwar Butt is 81 years old and a family friend of the applicant’s. He could pass for a much younger man. Before he retired, he owned and ran a sports clothing business in Brazil which his son now runs. Mr. Butt does not know the applicant well but knows his family well. Mr. Butt has been working with youth for a very long time and has a good track record with them. He was involved in many different sports including squash, soccer, track and fitness.
[25] Mr. Butt is no push over. He professes to be able to turn young people around. Mr. Butt said it is not too late to fix problems. He has done it before with kids and knows what it takes. They need to be pointed in the right direction. He is confident that he will be able to manage the applicant and improve him. Mr. Butt says he will make the applicant a good person. The discipline will be strict but the impression left was that it will be fair. Mr. Butt states that if the applicant steps out of line, he will call the police immediately.
[26] The Crown raised concerns that Mr. Butt was overly optimistic. I think that may be true. But it is optimism tempered by realism. Mr. Butt has high ambitions for his work with the applicant. There is nothing wrong with that. But the monitoring of the applicant and the duty to ensure he complies with bail—the key work of a surety--exist quite apart from his high expectations. Mr. Butt is not naïve.
[27] There was also a passage in Mr. Butt’s evidence which could be interpreted as conveying that he will keep trying to give the applicant chances and, in this way, turn a blind eye to breaches. This would be a misinterpretation of his evidence. In context, he was only saying that he would not give up on the applicant even if there were some rough patches.
[28] Mr. Butt does not have a high income but he has substantial equity in his house. He pledges $8000 as surety.
[29] The other proposed surety is Salimi Halimi, another family friend. She would be the secondary surety. She is 25 years old and lives with her parents and siblings. She works for an insurance company. Ms. Halimi pledges $4000 as surety.
[30] She has two younger brothers, 23 and 17. The younger one is friends with the applicant and with some of the other men allegedly involved in the robberies. Ms. Halimi states that her brothers have to follow her rules and the applicant will have to as well. Like Mr. Butt, Ms. Halimi showed herself to be responsible and serious.
[31] The applicant does not have a close, longstanding relationship with either surety. Rather, they are family friends. As Justice Durno remarked in R. v. Budge [2012] O.J. No. 2538 (S.C.), at para. 52:
… There is no law that sureties and accused have to have had an impeccable relationship in the past. Indeed, some separation in the relationship can be a good thing in terms of supervision in some cases.
[32] Surety bail rests on a paradox. A close friend or family member is potentially the best surety and, at the same time, potentially the worst surety.
[33] The premise behind a surety bail is to put pressure on the accused by ensuring that their surety will lose the money pledged if the accused does not conform with his or her bail. Behaviour control is exercised through threat of detriment to a closely associated third party. The closer the relationship of the surety to the accused, the more effective will be the “pull of bail” on the accused: Canada (Attorney General) v. Mirza and Horvath 2009 ONCA 732, 248 C.C.C. (3d) 1, at paras. 40-41.
[34] However, at the same time, a close friend or family member of the accused is more likely to be reluctant to rigorously supervise the bailee and to notify police of bail breaches. It was this reasoning which led to Justice Durno’s conclusion that separation in the surety\accused relationship is a good thing.
[35] I find that these two sureties have the ideal distance from the accused. The applicant will not want them to lose their money pledged. They are an integral part of the accused’s local community support. Moreover, they are well-positioned to ensure compliance.
[36] The plan is for house arrest with the applicant being permitted to go to school at Seneca College. One or the other of his sureties will drive him there and pick him up. Otherwise, subject to emergency medical situations, he would only be permitted out of the house with one of his sureties. It was proposed that he also be permitted to be out of his residence with one or both of his parents but the criticism of them by Justice Renwick at the original bail hearing demonstrates that this ought not to be permitted.
[37] Mr. Butt has social and professional commitments which would make it difficult for him to supervise the applicant Tuesday nights and on the weekends. Ms. Halimi will take over during those days and the applicant will live with her. While this type of arrangement is unusual, there is no reason it cannot work. Both sureties understand their obligations.
THE SECONDARY GROUND
[38] The secondary ground is taken up with the risk of further offences, both their potential frequency and their seriousness: R. v. Young, 2010 ONSC 4194, 89 W.C.B. (2d) 329, at para. 21. On the clear statutory language, as with the adult version of the secondary ground, it is the safety and protection of the public which is the ultimate standard. Consideration under the secondary ground includes the substantial likelihood of committing offences but this does not exhaust its reach. In practice, however, protection of the public will almost necessarily equate to the risk of further offences being committed.
[39] There is significant importance to Parliament’s reference in both Section 29(2)(a)(i) and the secondary ground in Section 29(2)(b)(ii) of the YCJA to “serious offences.” Section 29(2)(a)(i), together with Section 29(2)(a)(ii), (a pattern of outstanding offences or findings of guilt) are gateway provisions. Unless one or the other of them is met, it is not possible to even enter into consideration of detention on the primary, secondary and tertiary grounds. Under Section 29(2)(a)(i), the offence at issue for bail must be a “serious offence”—an indictable offence with a maximum of at least 5 years. Once past this barrier, under the secondary ground, detention can be ordered for the protection and safety of the public. A substantial likelihood of committing “serious offences” will generally be required, however: see R. v. R.L.B., [2013] N.J. No. 324 (Prov. Ct.) at para. 32.
[40] In others words, the accused must be charged with an offence punishable by at least 5 years and there must be a conclusion that there is a substantial likelihood of committing an offence of 5 years or more.
[41] The full gamut of criminal offences could theoretically be included based on the very broad public protection and safety language under the secondary ground. The protection and safety of the public--the bottom line test of the secondary ground--is potentially jeopardized by an accused who does not comply with bail orders. But that will be unusual. On their own, bail breaches, unless accompanied by significant criminal offences, do not generally jeopardize the public.
[42] The task of the bail judge ultimately is to weight the propensity to reoffend and then gauge the seriousness of the offence which might be committed. The YCJA puts a premium on the seriousness of the predicted offences. This is evidence from both Section 29(2)(a) and (b).
[43] In this case, the breaches and the obstruct police are not serious offences within the YCJA definition. Of course, it is disconcerting that the accused, charged with three bank robberies, flagrantly violated his house arrest. On a strict bail from such serious offences, one would expect that he would be on his best behaviour. There appears to be a tendency to breach bails orders. On the other hand, the house arrest breach itself and lying to the police about his name were not offences of a high magnitude of moral blameworthiness.
[44] I recognize that because the robbery bail was revoked, the robberies are in play in this bail hearing. They are serious offences as defined. But the applicant was released on a $4000 bail with respect to these. I do not understand the Crown to have challenged this release under Section 521 of the Code as is their right.
[45] The bank robberies are unquestionably very serious. It may be somewhat mitigating that the applicant was not inside the bank during the robberies. This has some ramifications for the seriousness of his conduct, although it would be a mistake to put too much emphasis on it.
[46] Under the secondary ground, if an accused is truly dangerous, whether they are an adult or a young person, detention must follow under the secondary ground. The modified secondary ground under the YCJA would operate to deny bail just as the adult secondary ground would. However, I would not grade the applicant’s dangerousness, based on the entire record, as exceedingly high. Of course, there is always some degree of risk when an accused is released on bail: R. B., at para. 42, R. v. Jerome, [2016] O.J. No. 3441 (S.C.), at para. 19-20.
THE TERTIARY GROUND
[47] The YCJA tertiary ground ought not to be applied in the same way as it is for adults. There are several reasons for this difference of approach. First, and most important, as mentioned above, the statutory language itself only allows it to be used in “exceptional circumstances.”
[48] The Supreme Court in St. Cloud pointedly held in several places in the judgment that adult detention under the tertiary ground does not depend on “exceptional circumstances.” In summarizing his eventual holding at the outset of the judgment, the Chief Justice said:
5 In my opinion, the scope of s. 515(10)(c) Cr. C. has been unduly restricted by the courts in some cases. This ground for detention is not necessarily limited to exceptional circumstances, to the most heinous of crimes involving circumstances similar to those in Hall, or to certain classes of crimes.
Also see paras. 53, 54, 87
[49] The YCJA tertiary ground therefore sets a significantly higher statutory standard for the Crown to meet than does the adult version. The “exceptional circumstances” condition is a substantial restriction on the use of the tertiary ground.
[50] Furthermore, the reasonable, informed member of the public from which perspective the tertiary ground must be viewed, is deemed to be aware of the special treatment and approach to young persons under our system. This includes the declaration of principle in Section 3 of the Act. Of the greatest pertinence is Section 3(b) which recognizes that the criminal justice system for young persons must be separate from that for adults. In addition, young persons have a diminished moral blameworthiness. They are more dependant and less mature than adults. Rehabilitation and reintegration should be emphasized. The YCJA looks to the underlying reasons behind the offending behaviour.
[51] Finally, it is also relevant that the Supreme Court has held that deterrence, both general and specific, are not proper sentencing principles under the YCJA. Sentencing must be “offender-centric.” Furthermore, it is the long-term protection of society that is the question, not shorter term interests: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 31-36, 39-41.
[52] These principles, distinguishing young persons from adults, are germane to bail. Bail for young persons should be approached from a different perspective, as confirmed by the modifications to the Criminal Code secondary and tertiary grounds. A more liberal approach is necessary. Immaturity and a focus on rehabilitation render the young person accused a potentially lower risk than an adult. Offences are more likely committed, or in this case re-committed, out of a foolishness which could be a passing stage on the journey to adulthood. Furthermore, in the context of bail, the well documented adverse effects of pre-trial detention are far more pernicious for a young person than for an adult.
[53] Ultimately it would be wrong to say that because general deterrence is not applicable to young persons, the tertiary ground is diminished as well. The two do not stand on the same ground. What can be said is that we should be wary of using generalized normative standards too readily when it comes to young persons. In maintaining the confidence of the public, young persons are not generally viewed as exemplars. The public understands this. Of course, there will be exceptions with very serious offences but they should be relatively rare.
[54] A reasonable and informed member of the public would take to heart on the tertiary ground what was held by the Chief Justice in R. v. Antic, 2017 SCC 27, [2017] S.C.J. No. 2766, at para. 66:
…Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... [that] confirms our faith in humankind": R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at pp. 119-20.
[55] The four enumerated criteria in the tertiary ground weigh against the applicant in this instance. The case, especially on the first robbery, is strong as the getaway car can be identified as the applicant parents’ car. The bank robberies are serious offences, although the breaches and the obstruct police are not serious in the sense intended by the YCJA bail language. The numerous non-compliance with court orders allegations is not impressive.
[56] The potential for lengthy imprisonment is tempered by the sentencing philosophy and provisions of the YCJA. The applicant has served in the area of four months in pre-trial detention thus far. His trial is not set until October of this year.
[57] Despite the factors in favour of detention, the Crown has not met their onus on the tertiary ground. The four factors are not so powerfully in favour of detention as to tip the balance against the force of the presumption of innocence. I am far from sure that the tertiary ground would justify detention for an adult.
CONCLUSION
[58] The strong presumption of release for young persons and their different situation only amplifies what the Chief Justice said in St. Cloud while commenting on bail under the adult system:
70 … it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. … This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.
[59] On the secondary ground, the applicant was previously released on a surety bail with respect to the three robberies. A judicial officer made the judgment that the Crown had failed to show cause under the YCJA bail provisions why he should be detained in custody.
[60] Of course I must exercise my independent discretion. But the previous release is not without relevance. Taking into consideration the robberies, the breaches and the new charges of breach and obstruct police committed, there is not a strong propensity to commit serious offences nor offences which would threaten the safety of the public.
[61] On the tertiary ground, although the needle measuring each of the four statutory factors rises at least to the mid-level, the YCJA requires more. It requires exceptional circumstances. The informed public looks at young persons and bail in a different light than it looks at adults under Section 515 of the Criminal Code. Although the public would perhaps have to be persuaded because of the seriousness and strength of the robbery cases, looking at the entire record, an informed and reasonable member of the public would appreciate why the Crown has not met their onus on the tertiary ground.
[62] In the context of the philosophy of the YCJA, a reasonable and informed member of the public would look at all the circumstances, including the virtual absence of a criminal record, the fact of the previous release on the robberies and the strength of the sureties, and would not lose confidence in the administration of justice.
[63] Furthermore, moving to sub. c of Section 29(2), the concerns under the secondary and tertiary grounds are placated by the strength of the sureties. They will not coddle the applicant and will expect he adhere strictly to the terms of his bail. Although the plan is not perfect, in my view it is sufficient to reduce the risk the applicant poses to a manageable level.
[64] I would grant bail with the two proposed sureties named, no deposit. Ms. Hamili will be in the amount of $4000 and Mr. Butt in the amount of $12,000. Although it was suggested that he pledge $8,000, he can easily afford $12,000 based on the equity in his home. The additional amount will significantly increase the pull of bail on the applicant and will also serve to sharpen Mr. Butt’s supervision of him.
[65] I would ask counsel to craft the release conditions based on the record and these reasons. A draft should be forwarded for my approval. If there are terms that cannot be agreed upon, I will resolve the differences.
D.E. HARRIS J.
DATE: February 6, 2019
COURT FILE NO.: YC-19-1417
DATE: 2019 02 06
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. K.(K.)
COUNSEL: D. S. Allison for the Crown Respondent
R. Vijan for the Applicant K.
BAIL REVIEW ENDORSEMENT
D.E. HARRIS J.
DATE: February 6, 2019