Court File and Parties

COURT FILE NO.: YC-20-133

DATE: 2020/12/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. N. C.

BEFORE: Mr. Justice G.E. Taylor

COUNSEL: Steve Kim and Lisa Ellins, Counsel for the Crown Jordana Goldlist, Counsel for N. C.

HEARD: December 9, 2020 by video conference

ENDORSEMENT

Background

[1] N. C., a young person, has been committed to stand trial on a charge of second-degree murder. N. C.’s date of birth is [...], 2003. He was arrested on April 15, 2019. This is his first application for bail.

[2] On Monday, April 15, 2019, shortly after 7:30 p.m., the body of a 17-year-old male was found in a motor vehicle in a wooded area off Patterson Road near the intersection of Valley Road in Dundas, Ontario. The body was in the front passenger seat. There was a gunshot wound to the top of his head. N. C. and two other young persons were seen in the area. Shortly after 8:00 p.m., the three accused were arrested. N. C. had a sawed-off shotgun in the waistband of his pants. One of the other two accused was in possession of the deceased’s cell phone. The deceased’s blood was identified on the sawed-off shotgun and on the sleeve of a sweater worn by N. C. when he was arrested. N.C. provided a false name upon his arrest.

[3] Photographs and video recordings obtained from N. C.’s cell phone and the iPod of one of the other accused depict a sawed-off shotgun very similar to the sawed-off shotgun in the possession of N. C. at the time of his arrest.

[4] Based on cell tower evidence, it appears that the deceased left his home driving his father’s car. The cell tower evidence also indicates the route followed by the vehicle to the location where the body was found. Also, based on the cell tower evidence and observations by other witnesses, the route taken by the three accused from the location of the vehicle to the point of arrest has been determined.

Legal Principles

[5] Pursuant to the Youth Criminal Justice Act, a young person may only be detained in custody pending trial if the conditions set out in s. 29(2) of the YCJA are satisfied. That section reads:

(2) 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.

(3) 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.

[6] The bail provisions of the YCJA can be summarized as follows:

a) A young person may only be detained if he or she is charged with a serious offence or has a pattern of outstanding charges or findings of guilt (a serious offence is defined to be an indictable offence, the maximum penalty for which is imprisonment for five years or more);

b) For a young person to be detained on the primary ground, there must be a substantial likelihood that the young person will not attend court when required to do so;

c) For a young person to be detained on the secondary ground, there must be a substantial likelihood that the young person will commit a serious offence if released;

d) For a young person to be detained on the tertiary ground, the young person must be charged with a serious offence and there must be exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice;

e) In addition to the factors enumerated in s. 29(b)(iii) confidence in the administration is to be assessed considering the principles in s. 3 of the YCJA;

f) Before making a decision to detain a young person, the judge must be satisfied that no conditions would address the concerns underlying the three grounds for detention;

g) The onus at all times remains with the Crown to satisfy the court that detention of the young person is required;

h) If a young person would otherwise be denied bail he or she may be placed in the care of a responsible person instead of being detained in custody (s. 31).

[7] In R. v. R.D., 2010 ONCA 899, [2010] O.J. No. 6111, the Ontario Court of Appeal held that the YCJA requires that young persons not be incarcerated pending trial unless it is absolutely necessary (para. 41).

[8] In R. v. K.K., [2019] O.J. No. 598, Harris J. of the Superior Court stated that there is a strong presumption in favour of bail pursuant to the YCJA (para.14).

N. C. Antecedents

[9] As stated previously, N. C. was born on […], 2003. He had not yet turned 16 years of age at the time of the alleged offence.

[10] N. C. has resided with his grandmother since he was 11 years of age.

[11] On October 17, 2017, N. C. was found guilty of robbery and was granted a conditional discharge for a period of 18 months plus a weapons prohibition. On September 14, 2018, he was convicted of possession of stolen property worth less than $5,000 and placed on probation for 16 months. On September 19, 2018, N. C. was found guilty of breach of a recognizance and sentenced to 12 months’ probation.

[12] On February 16, 2019, police investigated a complaint of N. C. threatening to stab a person at a Walmart store over a debt. No knife was seen and the person who reported the complaint declined it to proceed. N. C. was spoken to by the police and denied the incident.

[13] On November 18, 2017, N. C. and two other males confronted two persons and stole items from them including a cell phone. Police obtained a search warrant for the residence where N. C. was living and found the stolen phone in his jacket pocket. (It was not made clear to me at the bail hearing but it may be that this incident is what resulted in the conviction for possession of stolen property on September 18, 2018.)

[14] On January 28, 2017, N. C. and two others were arrested for shoplifting but the store declined to press charges.

[15] N. C. has successfully completed a number of courses and programs at Youth Peninsula Centre subsequent to his arrest. As of October 20, 2020:

• he was employed in the Kitchen Assistant program and was described as “a diligent and thorough worker”;

• he is said to “maintain positive interactions with both his peers and the staff group”;

• he “continues to demonstrate a strong work ethic in the classroom”.

[16] As of October 20, 2020, N. C. was at Level 4 of the Behavioural Level Program which is the highest level.

[17] However, N. C. has also been involved in four assaults at Youth Peninsula Centre. On May 4, 2019 he initiated an assault on another resident who had thrown a ball at him. On September 19, 2019, he instigated a fight by intentionally bumping into someone. On December 30, 2019, he responded to another young person throwing a cup of water at him by throwing a cup of water back at the other person and then punching him on the arm. On May 20, 2020 he assaulted another resident without provocation.

Discussion

[18] The offence with which N. C. is charged is serious.

[19] The Crown does not suggest that there is a substantial likelihood that N. C. will not appear in court when required to do so, if released.

[20] The Crown submits that detention is justified on the secondary ground on the basis that there is a substantial likelihood that N. C. will commit a serious offence if released.

[21] I am satisfied that there is a substantial likelihood that N. C. will commit a serious criminal offence, if released. N. C. was convicted of robbery when he was still 14 years old. Approximately one month after being convicted of that offence and while on probation, he was involved in what would appear to be another robbery. In September, 2018 he was convicted of possession of stolen property and breach of recognizance. He was still on probation for the latter two offences at the date on which the present charge is alleged to have been committed. N. C. may have threatened to stab a person over a debt approximately two months before the date of the events giving rise to the present charge. N. C. has been the initiator of four assaults since his arrest, the most recent of which was in May, 2020.

[22] Having come to the conclusion that the detention of N. C. on the secondary ground is justified, I must then consider whether the proposed plan of release attenuates the substantial likelihood that he will commit a serious offence if released.

[23] In general, the proposed plan of release is that N. C. will reside in the home owned by his grandmother located in the City of Hamilton. He will reside with his grandmother, his sister and his cousin. He will be subject to house arrest and will only be allowed outside the residence if he is accompanied by one of his sureties. The proposed sureties are N. C.’s grandmother who I will refer to as surety #1, his sister who I will refer to as surety #2, and his cousin who I will refer to as surety #3.

[24] Surety #3 is 24 years of age having been born on August 27, 1996. She has lived with surety #1 since she was 18. She is currently employed at a retirement home in Burlington. She earns between $1,800 and $2,000 monthly and has approximately $2,000 in savings. She proposes that she act as a surety in the amount of $2,500.

[25] Surety #3 was cross-examined. She testified that she has a close relationship with N. C. She said they are like siblings. However, she was unable to name any of his friends and she could not recall the school he was attending at the time of his arrest. She testified that she works from 7:30 a.m. to 4:30 p.m. She is planning to attend either Sheraton College or Niagara College beginning in May 2021. It is a one-hour commute to either campus.

[26] Although the plan is for N. C. to attend school by Zoom she was not aware of the school he will attend. She said she was not aware of any past violent behaviour on the part of N. C. She said she thinks that N. C. has a criminal record but not for anything serious. She said she did not know what a recognizance was and was unaware that N. C. had been convicted of breaching a term of a recognizance. She knew nothing about the four altercations in which N. C. has been involved while he has been in custody.

[27] Surety #2 is 23 years of age with a date of birth of October 2, 1997. She lived periodically with her grandmother from the age of 11. She lived on her own from age 18 to 22. She began residing at her grandmother’s home approximately three months ago. She works at a business in Burlington where she earns $525 per week. She commutes to work by public transit which takes an hour and a half each way. She has $2,000 in savings and is prepared to pledge that amount to secure her brother’s release.

[28] In cross-examination, surety #2 said she was close with her brother. However, she said she was not familiar with any of his friends. She testified that she was aware of N. C. being involved in one or two fights at school but they were nothing serious. She said that her brother was not a violent person and that any fights in which he had been involved were not his fault. She said she was aware of four fights involving N. C. while he has been in custody. After the first fight she told him to stop fighting. She said she has talked to her brother about the danger of firearms. She said she was surprised to learn that he had a firearm in his possession when he was arrested.

[29] Surety #1 is 74 years of age having been born on December 10, 1944. She has lived in Canada for 50 years. She became a Canadian citizen in 1978 or 1979. Her husband passed away in 1994. She resides in a home that she owns in Hamilton with the other two sureties and the younger brother of N. C. She receives a pension income of $28,000 per year and estimates the value of her home to be $700,000. In her affidavit she stated that there was a mortgage of $110,000 registered against the property. However, she testified that there are additional mortgages totaling $400,000 which she said were placed against the property fraudulently. She said she is working with a mortgage broker to have the fraudulent mortgages removed.

[30] In cross-examination, surety #1 testified that she was aware of N. C.’s conviction for robbery for which he received 18 months’ probation and a weapons prohibition. She knew he had committed other offences but was not aware of the particulars.

[31] Surety #1 said that she has acted as a surety on approximately eight occasions including three or four times when she has acted as a surety for N. C. She acknowledged being aware that N. C. had been convicted for breaching a term of his recognizance. He was out after curfew. She was his surety. She also acted as surety for N. C. when he was arrested on November 30, 2017. She ceased being his surety when he was arrested on another charge January 30, 2018.

[32] Surety #1 became a surety for another of her grandsons on June 19, 2018. She ceased being his surety when he was arrested on another charge on June 27, 2018.

[33] Surety #1 acknowledged that she declined to talk to the police after N. C.’s arrest on the current charge because she did not know any of his friends.

[34] Surety #1 said she believes that N. C. has changed since his arrest. She said she is aware that he has been in a few fights while in custody. She said N. C. is older now and will listen to her.

[35] On February 17, 2019, as part of the investigation about the threatened stabbing at a Walmart store, police attended at the home of surety #1 to speak to N. C. Surety #1 was present. According to the police report, surety #1 declined to identify herself.

[36] In the most recent Management/Reintegration Plan from Youth Peninsula Centre is a section dealing with views and comments of the young person and the young person’s parent/guardian. The note of a meeting held on April 7, 2020 indicates that surety #1 was not available to participate. The meeting proceeded without her. The note of a meeting held on July 21, 2020 indicates that surety #1 did not participate by telephone as previously arranged and confirmed on the day previous. The note of a meeting held on October 20, 2020 indicates that surety #1 and surety #2 did not participate in the teleconference as had been requested.

[37] It is apparent that surety #1 will be the main person responsible for monitoring and supervising N. C. if he is released. She is prepared to pledge and risk forfeiting a substantial sum of money if N. C. breaches any of the terms of release. Based on the evidence with which I have been presented I conclude that she has on previous occasions acted as surety and has not fulfilled her obligations. I have no doubt that she loves her grandson very much and wants to believe in him. Unfortunately, I find the trust she has in N. C. is unreasonable.

[38] In my view, surety #1 exhibited a nonchalant attitude about breaches by N. C. when she was his surety. The refusal to identify herself to a police officer investigating a serious incident involving a threatened stabbing is concerning. In my view this demonstrates a lack of respect for the police on the part of surety #1 and is an indication that she would not be an appropriate person to supervise N. C. in the community. The failure to participate in three meetings arranged by Youth Peninsula Centre involving N. C.’s progress and future, are further evidence of a nonchalant attitude and do not bode well for surety #1 providing adequate supervision to N. C. if he were to be released into the community.

[39] With respect to surety #2 and #3, I do not have confidence that they would be capable of the type of supervision that would be required if N. C. were to be released. To me it was obvious that they intend to rely on surety #1 to be the primary supervisor. Although they both professed to be close to N. C. the reality seems to me to be quite different. It is concerning that surety #2 was quick to absolve N. C. of any responsibility for fights in which he was involved.

[40] In my view, none of the proposed sureties would be suitable persons to monitor and supervise N. C. while he is on bail. I therefore conclude that the proposed plan of release and the sureties who would monitor that plan do not offer adequate protection to the public from the substantial likelihood that N. C. would commit a serious offence or serious offences if released from custody.

[41] The Crown submits that detention is justified on the tertiary ground. Because I have found that detention is justified on the secondary ground it is not necessary for me to decide whether detention is also justified on the tertiary ground. If I were required to do so, I would also find that detention is justified on the tertiary ground.

[42] On the facts presented at this bail hearing, it appears to me that this was a murder committed for no reason. It would appear that the deceased was shot from behind. It was a brutal killing. The offence of second-degree murder is one of the most serious in the Criminal Code. I find the strength of the Crown’s case to be substantial if not overwhelming. There seems to be no reason for this murder other than possibly the theft of a vehicle. A firearm was used. There will be a substantial jail sentence imposed if N. C. is convicted.

[43] Based on all of the circumstances, I am satisfied that an informed member of the public apprised of Charter values including the presumption of innocence and the principles underlying the YCJA would accept that detention of N. C. is required to maintain confidence in the administration of justice.

[44] Lastly, I am required to consider whether it is appropriate to release N. C. into the care of a responsible person pursuant to s. 31(1). I accept that surety #1 would agree to take care of and exercise control over the N. C. and that N. C. would agree to be placed in her care. I do not accept that surety #1 would be able to exercise control over N. C. and he would be amenable to such supervision. In R. v. B.C., [2011] O.J. No. 6661, Ducharme J. concluded that neither the young person’s mother nor sister were suitable as either sureties or responsible persons because they had no understanding of how the young person was actually living his life, did not know his friends and associates and had only a vague knowledge of how he was doing at school (para. 57). I have the same concerns with respect to surety #1. Like Ducharme J., I find that surety #1 is neither a satisfactory surety nor an appropriate responsible person.

[45] N. C. raises the issue of COVID-19 and its impact on persons who are detained in custody. It was conceded in oral argument that N. C. is not a person susceptible to contracting the virus nor is Youth Peninsula Centre a high-risk institution. As I appreciated the submission, it was that the restrictions imposed to manage the risk of COVID-19 infection will interfere with trial preparation. In my view that concern does not overcome what I have found to be the substantial likelihood that N. C. will commit a serious offence or offences, if released.

Conclusion

[46] For these reasons, N. C. will be detained in custody pending trial.

G.E. Taylor, J.

Date: December 29, 2020