WARNING: THIS IS A TRIAL UNDER THE YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT FILE NO.: CR-21-248 (Hamilton)

DATE: 2021-10-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

R.O.

The Honourable Justice Catrina Braid

Brett Moodie and Lisa Ellins, Counsel for the Crown/Applicant

Lindsay Daviau and John Rosen, Counsel for the Respondent

HEARD: August 23, 2021

RULING ON SECURITY ISSUE

I. OVERVIEW

[1] R.O. is a young person who is charged with second-degree murder and has elected trial by judge and jury. The trial is scheduled to take place before me commencing November 8, 2021, for four weeks.

[2] The Crown seeks an order that the court security officers be permitted to continue the leg shackling of R.O. during the trial. In these reasons, I shall refer to R.O. as the respondent.

[3] For the reasons set out below, the Crown’s application is allowed.

II. THE ALLEGATIONS

[4] The respondent, R.O., and the deceased, D.S., were grade nine students at Sir Winston Churchill Secondary School in Hamilton. D.S. was bullied at school by another male student. The respondent and D.S. did not know each other prior to the incident, and the respondent was not involved in the bullying.

[5] On October 7, 2019, there was a confrontation across the street from the high school. There was an argument and B.D., the respondent’s brother, sprayed bear mace. Everyone ran in different directions. After this confrontation, D.S. pursued B.D. and another boy to an area behind the high school.

[6] Around the same time, the respondent was on his way to the high school to meet his brother, B.D. While en route, the respondent and his brother began exchanging telephone calls. The respondent ran toward the scene with a large knife. He eventually located D.S. and his brother behind the school.

[7] The respondent stopped, leaving his shoes and a backpack on the sidewalk. He approached D.S. from behind as D.S. appeared to be unaware of the respondent’s approach. The respondent stabbed D.S. once in the back with a large hunting knife.

[8] D.S. ran a few yards, collapsed and died shortly thereafter. D.S.’s mother saw these events from her car. The cause of death was determined to be the stab wound to his back.

[9] The respondent fled and hid the knife under a bush. He was arrested a few blocks away from the scene and the knife was recovered.

[10] The parties agree that the respondent had nothing to do with the initial encounter outside the arena, nor was he involved in the bullying.

III. ANALYSIS

[11] The parties have agreed that the respondent should sit in the prisoner dock during the trial. In addition, defence counsel do not oppose the placement of additional security officers in the courtroom. However, defence counsel are opposed to shackles of any sort.

[12] The Crown proposes that court security be permitted to place soft, silent shackles on the respondent. Court security would bring the respondent to a holding area beside the courtroom and then place the silent shackles on him. He would then be moved into the prisoner dock before the arrival of the judge and jury and the shackles would not be visible to the jury.

[13] Although the shackles would prevent running, they do not hinder movement completely and do not make noise. If the respondent remains in the dock wearing the silent shackles, one special constable would be seated beside the dock and two would be seated in the body of the court, for a total of three officers.

[14] The trial judge has the overall jurisdiction to determine courtroom security: see R. v. McNeill (1996), 29 O.R. 3(d) 641 (Ont. C.A.).

[15] The presumption is that an accused should not be restrained unless the Crown can demonstrate that there exist reasonable grounds for concern to the safety of the participants to the proceeding, including members of the public, and to prevent escape. This should be balanced against the dignity of the accused in the context of the presumption of innocence, which includes the requisite appearance of innocence: see R. v. Vickerson, 2006 2409 (Ont. S.C.), at para. 34; and R. v. McNeill.

[16] The respondent is a young person who is charged under the Youth Criminal Justice Act (“YCJA”).

[17] The YCJA Declaration of Principles states that the criminal justice system for young persons must emphasize enhanced procedural protection to ensure that young persons are treated fairly and that their rights are protected: see s. 3(b)(iii) of the YCJA.

[18] When considering youth custody and supervision, the court ought to consider the least restrictive measures consistent with the protection of the public and of young persons: see s. 83(2)(a) of the YCJA.

[19] In drafting the YCJA, Parliament sought to interfere with the personal freedoms and privacy of young persons as little as possible. Given the heightened vulnerability of young persons in the justice system and their diminished moral blameworthiness, enhanced procedural protections have been built into the youth system: see R. v. K.J.M., 2019 SCC 55, 381 C.C.C. (3d) 293, at paras. 142 and 143; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 41.

[20] Defence counsel submits that there is a higher onus on the Crown when speaking of the dignity of young persons and restrictions placed on them, given the different protections afforded to young persons by the YCJA. I do not accept that the Crown has a higher onus on this application. However, when considering the dignity of the prisoner, the court must take extra care to ensure that the principles of fairness are applied and that the young person’s rights are protected. In addition, the court ought to impose the least restrictive measures that are consistent with the protection of the public.

[21] In this case, the Crown called evidence from a police sergeant in charge of court security at the Hamilton Sopinka courthouse. Pursuant to the Police Services Act, R.S.O. 1990, c. P.15, Sgt. Van Oene is responsible for the safety and security of all justice participants, including judges, accused persons, and any person attending the courthouse.

[22] I give considerable weight to the opinion of Sgt. Van Oene because of his role as head of court security and his experience. However, the ultimate determination must be made by me as the presiding judge and not by security staff.

[23] The following factors weigh in favour of the removal of the shackles during the trial:

i. The respondent was 14 years old when he was arrested and will be 16 years old at trial.

ii. The respondent does not have a youth court record.

iii. He has been in custody since his arrest and has been housed at the Arrell Youth Centre in secure custody. He was the victim of two physical altercations during that time. There is no record of any violent incidents instigated by the respondent since his arrest.

iv. He was compliant with court security during the preliminary hearing. However, he was wearing silent shackles during those court appearances.

[24] The following factors weigh in favour of continuing the shackling of the respondent during the trial:

i. The respondent is charged with one of the most serious offences, namely second-degree murder, by stabbing the deceased with a large hunting knife. If he is convicted, the Crown will seek an adult sentence.

ii. The respondent currently faces other charges of assault causing bodily harm, two counts of threatening death, and forcible confinement. It is alleged that, during that incident, the respondent used a knife and slashed the victim’s arm.

iii. Sgt. Van Oene has reviewed records from the respondent’s and his brother B.D.’s cell phones. These records predate the respondent’s arrest. There were several photos of the respondent brandishing what appeared to be a firearm, and frequent references to the respondent having a knife. Sgt. Van Oene also stated that there were messages showing a pattern of drug use and drug trafficking, although I have not been provided with evidence of the nature of the respondent’s role with respect to those messages. While I do not place any weight on the alleged drug-related messages, the photos and other references to weapons are of concern.

iv. The respondent will not be handcuffed while seated in the prisoner's box.

v. There have been past incidents in which a prisoner who was not wearing handcuffs or shackles jumped out of the prisoner dock. Individuals in custody are in extremely stressful circumstances and it is sometimes unpredictable how they will act.

vi. The silent shackles are made of a black webbing material that is similar to seat belt fabric and are secured around both ankles. While there is a buckle on the ankle and a large metal piece that is secured with a key, the buckle and metal piece would not make contact with bare skin in any way and would not make any noise. The shackles provide the same level of security as metal shackles but are more comfortable and do not make the sounds caused by the chain of the traditional shackles. They can be loosened and are adjustable so that there will be no discomfort. They will not interfere with receiving or providing instructions to counsel. Since the respondent will not be handcuffed, he will be able to take notes if he wishes to do so.

vii. When worn in the prisoner's box, the shackles cannot be seen. The respondent’s dignity and the presumption of innocence, including the requisite appearance of innocence, can be protected by the use of silent shackles because the jury will not know they are there.

viii. If the respondent is unshackled during trial, there will be a need for more officers in the courtroom. Sgt. Van Oene recommends that two officers be stationed directly beside the respondent if he is unshackled, as opposed to one officer when the respondent is shackled. This may create a negative perception in the minds of the jury. The silent shackles will better protect the presumption of innocence.

ix. At trial, there will be media coverage, public attention, and the potential for emotionally charged family members. During the preliminary hearing, an argument escalated outside the courtroom, and uniformed police officers were required to assist court security. While the respondent was not involved in that incident, there is a potential for similar incidents in the courtroom that would draw an officer’s attention away from the respondent.

x. The front and the back of the prisoner’s dock have removable Plexiglas barriers which have been put in place during the COVID-19 pandemic. They are not security barriers. The sides of the prisoner dock do not have any barriers. The dock is only a few feet behind counsel tables where the Crown and defence lawyers will be seated during the trial.

xi. While shackles are not a perfect security device on their own, they hinder mobility to prevent escape and would give officers time to respond if the respondent decided to act.

xii. The respondent is a young, slender individual who could leap out of the prisoner dock with limited difficulty. If a disruption were to occur in the courtroom and if he were not wearing leg restraints, he would have an increased chance of escape or the opportunity to carry out a violent act. There are numerous items in the courtroom that could be used as a weapon.

[25] The Crown is not required to prove safety concerns and risk of escape beyond a reasonable doubt or even on a balance of probabilities: see R. v. Vickerson, at para. 35.

[26] I find that there are reasonable grounds for concern to the safety of the participants to the proceeding. The respondent’s outstanding charges involve extremely serious, violent allegations. The cell phone references to weapons are also troubling. The court must be mindful of the safety and security of all participants in this trial. I am also concerned that, without shackles, there is a potential for escape, given the ease with which the respondent could leave the prisoner dock.

[27] If he is required to wear shackles, the presumption of innocence (including the requisite appearance of innocence) can be maintained since the jury will be unaware that he is wearing leg restraints. His dignity and comfort can be preserved. The prejudice to the respondent is very low because the silent shackles cannot be seen or heard by the triers of fact. They are minimally intrusive.

[28] I have considered the need to maintain the dignity of the respondent in the context of the presumption of innocence. I have also considered my duty to ensure the safety of participants and to prevent escape. It is my opinion that the wearing of the silent shackles achieves the balance between safety of all the participants and the dignity of the accused in the context of the presumption of innocence. In addition, I am satisfied that silent shackles are the least restrictive measure that is consistent with the protection of the public.

IV. CONCLUSION

[29] For all of these reasons, this court orders that the respondent shall remain in the prisoner dock in silent shackles and without handcuffs during his trial.

Braid J.

Released: October 7, 2021