COURT FILE NO.: CR-19-49-00MO DATE: 20200220 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S. Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent
Simon Borys, for the Applicant Luc Boucher, for the Respondent
HEARD: 2 October 2019, at Kingston
reasons for decision (Application for relief in the nature of certiorari in respect of the decision of Justice Rommel G. Masse of the Ontario Court of Justice dated 23 April 2019)
Section 110 of the Youth Criminal Justice Act prohibits the publication of the name of a young person or any other information related to a young person that would identify the young person as a young person dealt with under the Youth Criminal Justice Act.
MEW J.
[1] This application concerns whether the Crown is entitled to apply for a bail hearing de novo in respect of a young person who has been released to the care of two responsible persons pursuant to an order made by a justice of the peace under s. 31 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”).
Background
[2] On 25 January 2019, the applicant, a young person, was charged with terrorism-related offences.
[3] On 3 April 2019, Justice of the Peace Kreling concluded that the detention of the applicant pending his trial was justified on the secondary and tertiary grounds set out in s. 515(10) of the Criminal Code, R.S.C. 1985, c. C-46 (as amended) and ordered, pursuant to s. 31(1) of the YCJA, the applicant to be placed in the care of responsible persons, namely his two sisters, instead of being detained in custody.
[4] The Crown then brought an application before a youth justice court judge in the Ontario Court of Justice pursuant to s. 33(1) of the YCJA for the detention in custody of the applicant, to be heard as an original application.
[5] The Crown’s application was opposed on the ground that the court had no jurisdiction to hold a de novo bail hearing under section 33 in the circumstances of this case.
[6] On 23 April 2019, the youth justice court judge concluded that the court did have jurisdiction to hear the Crown’s application as an original application, i.e. de novo, notwithstanding that an order had been made placing the young person in the care of two responsible persons.
[7] The Crown’s application under s. 33 has yet to be heard. The applicant was arrested and charged with failing to comply with an undertaking and mischief, and remains in detention on those charges pending a bail hearing.
[8] In the meantime, the applicant seeks relief by way of certiorari from this court quashing the decision of the youth justice court judge.
Legislative Scheme
[9] Provisions relating to the detention before sentencing of young persons charged with criminal offences are contained in sections 28 to 33 of the YCJA. Section 28 provides that except to the extent that they are inconsistent with or excluded by the YCJA, the provisions of the Criminal Code relating to judicial interim release apply to the detention and release of young persons.
[10] The law’s approach to the judicial interim release of young persons was described by Rosenberg J.A. in R. v. D.(R.) (2010), 2010 ONCA 899, 273 C.C.C. (3d) 7 (Ont. C.A.), at p. 26 as follows:
The law favours release in the context of young persons, even those charged with very serious offences, as supported by the principles set out in s. 3 of the Act and the principles of fundamental justice recognized by the Supreme Court of Canada that relate to young persons.
[11] To similar effect, it has been said that “Parliament has directed judges not to incarcerate young people pending trial unless it is absolutely necessary or to put it another way, unless there is no other alternative available to the court”: R. v. A.(S.), 2004 ONCJ 184 at para. 10.
[12] Section 29(2) of the YCJA sets out when detention of a young person in custody before sentencing can be justified. When applicable, the criteria set out in s. 29(2)(b) closely follow the scheme and substance of s. 515(10) of the Criminal Code.
[13] Where it has been determined that a young person would otherwise be detained in custody, the court is required to inquire as to the availability of a responsible person and whether the young person is willing to be placed in that person’s care”: YCJA, s. 31(2).
[14] The placement of a young person with a “responsible person” under 31 of the YCJA has been described as a “super-surety” relationship: Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters Canada, 2017) at S. 6.4. The responsible person must sign a written undertaking to "take care of" and to "exercise control over" the young person's attendance in court and compliance with any other conditions imposed. The young person must also sign a similar undertaking. A wilful failure to comply with these undertakings is an offence punishable by up to two years' imprisonment for both the young person and the responsible person: YCJA, s. 139(1).
[15] Subsections (4) and (5) of s. 31 permit the court to make an order relieving a responsible person of the obligations of a placement under s. 31, in which case the young person would ordinarily be re-arrested and the process under s. 29 et seq. followed afresh:
Removing young person from care
(4) A young person, a person in whose care a young person has been placed or any other person may, by application in writing to a youth justice court judge or a justice, apply for an order under subsection (5) if
(a) the person in whose care the young person has been placed is no longer willing or able to take care of or exercise control over the young person; or
(b) it is, for any other reason, no longer appropriate that the young person remain in the care of the person with whom he or she has been placed.
Order
(5) When a youth justice court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he or she was placed under subsection (1), the judge or justice shall
(a) make an order relieving the person and the young person of the obligations undertaken under subsection (3); and
(b) issue a warrant for the arrest of the young person.
Effect of arrest
(6) If a young person is arrested in accordance with a warrant issued under paragraph (5)(b), the young person shall be taken before a youth justice court judge or a justice without delay and dealt with under this section and sections 28 to 30.
[16] Section 33 provides a mechanism for an application to be made in certain circumstances for the detention in custody of a young person:
Application for release from or detention in custody
33 (1) If an order is made under section 515 (judicial interim release) of the Criminal Code in respect of a young person by a justice who is not a youth justice court judge, an application may, at any time after the order is made, be made to a youth justice court for the release from or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an original application.
Issue
[17] The applicant asserts that there is no jurisdiction for the court to entertain an application under s. 33 where an order has been made under s. 31(1) placing him in the care of a responsible person. Rather, absent a breach of the conditions of placement, the applicant’s position is that the route for seeking an order which has the effect of varying, revoking or replacing an order under s. 31(1) is to apply for an order relieving the responsible persons and the applicant of the obligations undertaken by them as conditions of the s. 31(1) order having been made.
The Decision of the Youth Justice Court Judge
[18] The youth justice court judge framed the issue as arising from the relationship between sections 31 and 33 of the YCJA. In his careful and comprehensive reasons, the youth justice court judge offered three core reasons for granting the Crown’s application to hear the matter de novo:
a. Section 33(7) of the YCJA expressly precludes a review under sections 520 or 521 of the Criminal Code of an order made in respect of a young person by a justice who is not a youth justice court judge (e.g. a justice of the peace), indicating Parliament’s intention to provide a youth justice court judge with the final say on matters of detention before sentencing by way of a de novo determination.
b. Although s. 33 of the YCJA makes reference to orders made under s. 515 of the Criminal Code (judicial interim release), in a case involving a young person, section 515(2) – which lists the various forms of release available to an adult after a bail hearing – must be read together with s. 31 of the YCJA; and
c. Section 31(4) of the YCJA does not provide a review process - it simply addresses situations where the relationship between the young person and the responsible person breaks down.
[19] The youth justice court judge ultimately concluded that it would take very clear and precise statutory language to oust the jurisdiction of a youth justice court judge to hold a bail hearing de novo, when a judge would clearly have such jurisdiction in respect of all other forms or release or detention.
The Applicant’s Position
[20] The applicant argues that a youth justice court judge has no jurisdiction under s. 33(1) because a s. 31(1) release is a distinct form of release, separate from s. 515(2) of the Criminal Code. Instead, s. 31(4) is the proper recourse for challenging a 31(1) release. Such an interpretation reflects Parliament’s intention that section 31 of the YCJA operate as a distinct scheme from the adult bail provisions in section 515 of the Criminal Code and its associated youth detention justification provision in s. 29 of the YCJA.
[21] Because s. 29(2) of the YCJA effectively replaces s. 515(10) of the Criminal Code, it logically follows that s. 31 likely replaces other 515 subsections, with the result that de novo bail hearings are only available when the s. 515/s. 29 scheme is engaged. By contrast, the separate s. 31 scheme has express provisions (subsections 4 and 5) that enable a court to remove a young person from care where the circumstances warrant. Put differently, a consistent and harmonious reading of the provisions indicates that, after a responsible person order has been made, the Crown must bring any challenge under s. 31(4).
[22] Furthermore, allowing the Crown to have a de novo bail hearing on demand after failing to obtain an order for the detention of a young person under s. 29 would be inconsistent with the objective of the YCJA to avoid youth incarceration for all but the most serious of circumstances.
The Respondent’s Position
[23] The respondent argues that a s. 31(1) responsible person release is not part of a standalone scheme. Rather, s. 31 creates an additional step in the overall bail process outlined in sections 28 - 33 of the YCJA. The interaction between sections 31 and 33 should be viewed in light of the object and purpose of the YCJA, which is to provide enhanced procedural protections to young persons. As a “super-surety” scheme, s. 31 provides an additional procedural protection for young persons working in complementarity with the rest of the sections 28–33 bail process.
[24] The object of s. 33 itself is not a form of bail review. Rather, it provides a process to provide the final say on whether there should be a detention in custody of a young person to a youth justice court judge, by way of a de novo hearing, rather than a justice of the peace, who is not a youth criminal expert. This is also consistent with the purpose of the YCJA, the respondent argues, as it provides special procedural protections for young persons.
[25] The respondent also warns against the “unwarranted effects” of adopting the defence’s argument, which would shield a justice of the peace’s decision from any effective recourse other than seeking relief by way of certiorari from a superior court or appealing to the Supreme Court of Canada.
[26] Lastly, s. 31(4) deals only with prospective changes to a responsible person’s situation. Section 31(4) refers to a removing a young person from care where it is “no longer” appropriate for the young person to remain in the care of the responsible person. This fails to provide a reconsideration mechanism, giving the justice of the peace the final decision and denying a youth justice court judge with subject-matter expertise an opportunity to consider whether the young person should be detained.
Analysis
[27] As Ruth Sullivan, Statutory Interpretation (Toronto: Irwin Law, 3rd Edition, 2016) at p. 38, observes, the judicial task begins with textual analysis to discover the intention of the legislature:
The task is to give effect to the intention of the legislature insofar as that intention is discoverable from the language of the text. When the intention is not evident, resort must be had to the rules of statutory interpretation. And if the intention remains doubtful despite this further interpretive effort, the judge must then rely on his or her professional judgement to fashion an appropriate solution.
[28] Consistent with a modern approach to statutory interpretation, I begin by considering the plain and ordinary meaning of the relevant YCJA sections. An understanding of this meaning can be supplemented with the object and purpose of the YCJA to extract Parliament’s intent. Where ambiguity remains, as Sullivan explains (at. p. 51) “the larger context must be looked at to resolve the ambiguity”.
i. Plain and Ordinary Meaning of the YCJA Sections
[29] In the Law of Bail, at S. 3.5(b), Justice Trotter describes s. 29(2) as an “extremely complicated provision” which “is consistent with the labyrinthine nature of the YCJA as a whole”.
[30] As the youth justice court judge correctly observed, s. 33(7) of the YCJA expressly precludes a bail review from being conducted under sections 520 or 521 of the Criminal Code in respect of a young person where the order was made by a justice who is not a youth justice court judge. In my view, this supports the conclusion that Parliament intended to give a youth justice court judge power to review an order by a justice of the peace to place a young person in the care of a “responsible person” under 33(1). To conclude otherwise would effectively shield a justice of the peace’s decision on youth detention from the review of a youth justice expert, unless s. 31(4) is accepted as the proper recourse. But it seems clear that s. 31(4) only addresses situations where an ongoing 31(1) undertaking is no longer sustainable.
[31] The wording of s. 31(1)(a) also assists. It states that “the young person would, but for this subsection, be detained in custody under section 515 (judicial interim release) of the Criminal Code”. In other words, “but for” a responsible person release, the accused would be detained under s. 515. The plain and ordinary meaning here is somewhat ambiguous, but no words clearly oust s. 515 or render the Criminal Code inconsistent with the YCJA, as s. 28 requires. Resolving this ambiguity with reference to other interactions between the YCJA and the Criminal Code (see below) favours an integrated scheme. I disagree with the applicant that this wording indicates Parliament’s intention to render s. 31, as a whole, its own bail review process; this wording indicates only that the 31(1)(a) subsection applies where the accused would otherwise be detained under s. 515.
ii. Purposive Analysis of Section 33(1): Upholding Parliament’s Intent
[32] In R. v. J.D.G.V., 2010 SKPC 77, s. 31 was interpreted as obliging courts to consider a responsible person release “even if the court is satisfied that the young person would otherwise be detained in custody, having regard to s 515 of the Code”. Section 31 thus adds to s. 515 but does not replace it as the applicant suggests. I agree with the youth justice court judge (at p. 10) that “that interpretation gives full effect to all of the bail provisions set out in the Youth Criminal Justice Act and to those provisions of the Criminal Code that are incorporated by reference into the Youth Criminal Justice Act”.
[33] The applicant relies on the assertion, in R. v. Antic, 2007 SCC 27, at para 42, that s. 515(2) of the Criminal Code “establishes the only legal forms of pre-trial release”. However, Antic dealt only with adult bail. Relying on Antic overlooks the integrated and complementary nature the YCJA bail provisions play with respect to s. 515 of the Criminal Code.
[34] As noted by the youth justice court judge (at p. 4 of his reasons):
The provisions of Part 16 of the Criminal Code of Canada dealing with compelling appearance of an accused and interim release apply to the detention and release of young persons, except to the extent that they are inconsistent with, or excluded by, the Youth Criminal Justice Act. Section 29 provides for strict criteria to be met before a young person may be ordered detained. This is in the spirit of the Youth Criminal Justice Act to, as far as possible, not detain young people.
He continued (at p. 5):
Section 29 of the Youth Criminal Justice Act is a modification of s. 515 of the Code, and for purposes of the Youth Criminal Justice Act, s. 515 and s. 29 of the Youth Criminal Justice Act have to be read together.
[35] Justice Trotter in The Law of Bail at S. 3.5(b) seems to agree:
Section s. 29(2) of the YCJA replaces s. 515(10) of the Criminal Code for the purposes of determining whether a young person should be detained prior to trial. … However, it is important to realize that this section does not impair the operation of the rest of Part XVI of the Criminal Code at youth bail hearings. This is confirmed by the wording of s. 28 of the YCJA.
[36] These views are also consistent with the principle that statutes, or portions of statutes, that deal with the same subject or contribute to an integrated scheme are regarded as in pari materia: see Sullivan, Statutory Interpretation, at p. 179. In Re Therrien, 2001 SCC 35, [2001] 2 S.C.R. 3, Mr. Justice Gonthier remarked, in relation to statutes in pari materia, that (at para. 121):
Interpretations favouring harmony between the various statutes enacted by the same government should indeed prevail. This presumption is even stronger when the statutes relate to the same subject matter.
[37] The foregoing supports a conclusion that s. 515, as a whole, must be read together with s. 31(1), not separately as the applicant argues. Parliament intended sections 28–33 as a global youth bail review mechanism modifying, but not replacing, s. 515, with the exception of s. 29(2) which specifically ousts s. 515(10). The applicant overlooks this point in arguing that s. 29 replaces s. 515 writ large; rather, it only replaces s. 515(10), and the remainder of s. 515 is more correctly understood as operational.
iii. Purposive Analysis of Section 33: Avoiding Absurd Results
[38] Reference has already been made to Rosenberg J.A.’s explanation of the purpose of the YCJA in R. v. D.(R.). Justice Trotter also comments in The Law of Bail in Canada (at S. 3.5) that s. 31 must be guided by the principles in s. 3, which sets out the purpose of the YCJA: s. 31 is mandatory and meant to provide another barrier to custody for young persons. In other words, upholding the purpose of the YCJA requires reading s. 31 as a means of avoiding youth custody, albeit under extremely strict conditions.
[39] The applicant’s argument is that either party would need to challenge 31(1) using 31(4). In practice, this would mean, as the youth justice court judge recognised (at p. 3), that “the responsible person would be relieved of their duties, an arrest warrant would be issued for the arrest of the young person, and once back in custody, then and only then would a new bail hearing de novo be held”. On this reading, it seems quite clear that placing a youth in custody to await a new bail hearing fails to “provide another barrier to custody”, as Justice Trotter asserts is necessary under s. 31.
[40] Conversely, as the respondent submits, under the process provided for by s. 33(1), the youth simply remains in the care of a responsible person while the matter is considered de novo. Not only does this appear more practical, efficient and sensible, it also advances the purpose of the YCJA under s. 3.
Conclusion
[41] The Crown is, as the youth justice court judge held, entitled to a bail hearing de novo in respect of the applicant pursuant to s. 33(1) of the YCJA. This notwithstanding that the applicant was ordered by the justice of the peace to be placed in the care of a responsible person.
[42] The application is, accordingly, dismissed.
Publication
[43] The ruling by Masse J. contains a notice making reference to the publication restriction provision in s. 517(1) of the Criminal Code. I am provisionally of the view that such order as may have been made by a court below would not affect this decision and that no such order should be made in respect of the publication of this decision. If, however, either of the parties are of a different view, they should advise me via the Trial Coordinator in Kingston within 14 days of the release of these reasons. These reasons will not be published in the meantime.