COURT FILE NO.: CR-22-00000022-00

DATE: 20220202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JAKE YOUNG

Applicant

M. Friedman, for the Crown

S. Kelly, for the Accused

HEARD: February 1, 2022, by videoconference

Chalmers, J.

ENDORSEMENT

OVERVIEW

[1] Jake Young brings this Application pursuant to s. 520 of the Criminal Code for a review of the order of Justice of the Peace, Chandhoke dated December 3, 2021. The Justice ordered Mr. Young detained after a contested bail hearing. The Applicant argues that the Justice made an error of law in failing to fully consider the Gladue principles pursuant to s. 493.2 of the Criminal Code.

[2] Following an incident that occurred on September 3, 2021, Mr. Young was charged with the following offences:

Robbery;

Assault with a Weapon;

Breach probation (x2);

Carry Concealed Weapon;

Assaulting a Peace Officer; and

Utter Threats to cause death.

[3] The circumstances of the incident were recorded on video. It is alleged that on September 3, 2021, Mr. Flood was in the area of 33 Charles Street East, Toronto. He was surrounded by two men, one female and one person of unknown gender. The Crown alleges that one of the men was identified as Jake Young. On the video camera, Mr. Young is observed becoming physically aggressive with Mr. Flood. It is alleged that Mr. Young pulled out a knife and placed it on the right side of Mr. Flood’s neck. Items were removed from Mr. Flood’s pockets. After the parties began to walk away, Mr. Flood followed Mr. Young and appeared to confront him. Mr. Young made a stabbing gesture with the knife. The knife is believed to have made contact with Mr. Flood causing him injury. When arrested, Mr. Young is alleged to have spat at one of the arresting officers.

[4] Mr. Young has been detained in custody since the date of his arrest. The trial is scheduled for May 2-6, 2022.

[5] The bail hearing took place on December 3, 2021 before the Justice of the Peace Chandhoke. Following a contested bail hearing, the Justice of the Peace made a detention order. In his reasons, he makes note of the fact that Mr. Young is a non-status Indian and identifies him as First Nations. He referenced Mr. Young’s aboriginal status and the Gladue principles in his brief oral reasons.

[6] The Applicant argues that the Justice of the Peace paid “lip service” to the Gladue principles and did not fully consider the principles in making the detention order.

[7] I am satisfied that Mr. Young is an indigenous person for the purpose of s. 493.2 of the Criminal Code and therefore the Gladue principles must be considered in a bail hearing. I am also satisfied that the Justice of the Peace considered the Gladue principles in making his detention order and made no error of law. Even if an error of law had been made, I find that on a de novo consideration of the bail, the detention order is appropriate in light of the Gladue principles. I dismiss the Application.

THE ISSUES

[8] I will consider the following issues in this endorsement:

(i) Preliminary issue – the admissibility of Mr. Young’s affidavit?

(ii) Did the Justice of the Peace make an error of law? and

(iii) On a de novo review of the bail, is detention required on the secondary ground?

ANALYSIS

Preliminary issue – the admissibility of Mr. Young’s affidavit?

[9] The Superior Court has the discretion to review a lower court’s detention or release of an accused in the following circumstances:

(a) The lower court erred in law;

(b) The lower court’s decision was clearly inappropriate; and/or

(c) The new evidence is submitted to show a material and relevant change in the circumstances of the case: R. v. St-Cloud, 2015 SCC 27, at paras. 120-121.

[10] Mr. Young argues that he is an indigenous person and the Justice of the Peace erred in law in failing to consider the Gladue principles. In support of his position, he filed an unsworn affidavit. In the affidavit he states that he was told by his father that he is indigenous and believes he is Mohawk from Six Nations. He also sets out his personal background including that he was placed in CAS at age 8 and remained in the system until he turned 21. He states that he has accessed resources at Toronto Council Fire and attended diversion through Aboriginal Legal Services.

[11] The Crown argues that the affidavit is inadmissible. In determining whether new evidence is admissible, the reviewing judge must apply the four criteria articulated in Palmer v. R., 1979 CanLII 8 (SCC), [1980] 1 SCR 759, modified for the bail context, to determine whether the proposed new evidence should be admitted pursuant to section 520(7) of the Criminal Code.

(1) Due diligence: is the evidence “new” because

(i) it was unavailable at the original hearing or

(ii) if available, was it not tendered for a legitimate or reasonable reason?

(2) Relevance: is the new evidence relevant to the analysis under section 515(10)?

(3) Credible: is the new evidence credible, trustworthy and capable of belief?

(4) Significance: could the new evidence have some bearing on the original decision?

[12] The criteria must be applied in a flexible manner, consistent with the generally expeditious nature of the bail hearing, the relaxed rules of evidence, and the fact that bail hearings generally take place at the start of criminal proceedings: R. v. St-Cloud, paras 121-123.

[13] The Crown argues that the affidavit could have been submitted at the time of the original hearing. The information set out in the affidavit is fairly limited and would not have required a significant amount of time to prepare.

[14] The Crown also argues that the evidence is not credible testimony. The affiant is not being put forward for cross-examination. The information in the affidavit consists of double hearsay in that Mr. Young deposes that he had been told by his father that he is indigenous. Although Mr. Young claims in his affidavit that he participated in Aboriginal Legal Services, there is no material from Aboriginal Legal Services confirming his participation.

[15] Finally, the Crown argues that the new evidence would not have affected the result. The affidavit refers to Mr. Young’s father telling him he was indigenous and this gave him a sense of community. The affidavit does not refer to “any unique, systemic or background factors” that may have played a part in bringing Mr. Young before the court: R. v. Robinson, 2009 ONCA 205, at para. 13.

[16] I have concerns with respect to the trustworthiness of the affidavit. However, in light of the importance of taking into account the Gladue principles in a bail hearing, I admit the fresh evidence: R. v. Monckton, 2017 ONCA 450, at para. 109. Although I admit the unsworn affidavit, I am of the view that the new evidence has little or no bearing on the issues to be determined on this Application. The new evidence does not show a material and relevant change in the circumstances of the case that would justify a review of the Justice of Peace’s decision.

Did the Justice of the Peace make an error of law?

[17] Section 493.2 of the Criminal Code provides as follows:

493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of:

(a) Aboriginal accused; and

(b) Accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

[18] Section 493.2 applies to a bail hearing: R. v. Robinson, at para. 13. Failure to consider the Gladue principles on a bail hearing constitutes an error of law: R. v. Papequash, 2021 ONSC 727 at para. 7.

[19] As noted by the Court of Appeal in R. v. Robinson:

It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release: at para. 13.

[20] The accused must establish that he is an Indigenous person for the Gladue principles to apply. The accused is not required to “draw a straight line” between his Aboriginal status and the offences. However, “more is required than the bare assertion of Aboriginal status”. As noted in R. v. Brown:

The court must consider whether the offender had lift[ed] his life circumstances and Aboriginal status from the general to the specific. Put another way the sentencing judge must determine the degree to which unique circumstances related to the offender’s background played a part in bringing that offender before the court. This is necessarily a case specific inquiry: R. v. Brown, 2020 ONCA 657, at paras. 48, 50.

[21] On the bail hearing, Mr. Young took the position that he is a “non-status Indian”. He self-identified as indigenous. He did not put forward any evidence to explain how the indigenous experience has affected him or how it caused him to be before the court. Mr. Young proposed a release plan that involved him voluntarily accessing Indigenous community organizations. There was no evidence as to how voluntarily accessing the organizations would satisfy the primary, secondary or tertiary grounds.

[22] Although the Justice of the Peace had limited material before him, he considered the application of the Gladue principles. He acknowledged that Mr. Young had the support of the community aboriginal network in many different ways. He noted however that the aboriginal services are not required to supervise him. There were no sureties. The Justice of the Peace concluded that a detention order was required on the secondary ground.

[23] Crown counsel argues that the Gladue analysis in the Justice of the Peace’s reasons was limited because the evidence on Mr. Young’s indigenous status before him was also limited. There was no material before the Justice of the Peace that would allow him to meaningfully relate the general context of the Canadian aboriginal experience with Mr. Young’s specific circumstances.

[24] The Justice of Peace’s reasons make reference to the Gladue principles without providing a significant amount of detail. A Justice of the Peace needs not address every argument and flesh out every principle in the case. Justices of the Peace are presumed to know the law: R. v. Kongolo, 2021 ONSC 6619 at para. 47. I acknowledge that a Justice of the Peace must do more than simply pay “lip service” to the Gladue analysis: R. v. Papequash, at para. 7. However, the Justice of the Peace can only deal with the material before them on the bail hearing. Here, the material was very limited.

[25] I conclude that the Justice of the Peace considered the Gladue principles on the limited evidence before him on the bail hearing. I find that the Justice of the Peace did not err in law.

On a de novo review of the bail, is detention required on the secondary ground?

[26] Had the Justice of the Peace made an error of law, I would be authorized to engage in the s. 515(10) analysis to determine if the detention of the accused in custody is justified. The hearing is conducted de novo. A de novo hearing does not necessarily lead to a different outcome: R. v. F.H.L. 2018 ONCA 83, at para. 37. Here, I am satisfied that on a de novo hearing Mr. Young’s detention would be required on the secondary ground.

[27] Mr. Young has a significant criminal record, including 8 entries for violence and 12 entries for breaching court orders. The current offences are extremely serious. The alleged circumstances of the accused putting a knife to the victim’s neck and then stabbing the victim in the abdomen are particularly troubling. After the arrest, the accused allegedly spat on the police officer. I am satisfied that if convicted following a trial, a penitentiary sentence would likely follow: R. v. JMO, 2017 MBCA 59, at paras. 117 and 166.

[28] Mr. Young does not have a surety. Counsel for Mr. Young argues that he does not have family, or anyone who could act as a surety because of his background. It is proposed that he be released without a surety. Counsel states that the release order could provide that Mr. Young will pursue the resources outlined in the Aboriginal Legal Services release plan dated December 3, 2021. The release plan provides that Mr. Young may access a number of services offered by Indigenous community organizations following release including the Council Fire Native Cultural Centre, Native Canadian Centre Toronto, and the (Four Winds) Indigenous Health and Wellness Program.

[29] The Aboriginal Legal Services does not provide direct supervision of the accused. Mr. Young will be required to voluntarily follow through on the services. The release plan does not include any additional supervision. It requires the court to trust Mr. Young to voluntarily comply with the terms of release and to maintain contact with his lawyer.

[30] Mr. Young’s criminal record is replete with violent acts and breaches of release orders. Previous convictions include assault, assault with a weapon, failure to comply with probation orders and fail to attend court. His most recent conviction was on June 29, 2021 for robbery, dangerous operation of a conveyance, assault peace officer and fail to comply with a probation order. At the time of the convictions, the Aboriginal Legal Services was asked by counsel for Mr. Young to prepare a Gladue Report. By letter dated June 28, 2021, the Aboriginal Legal Services advised that they were unable to complete a report because they were unsure about the specific nature of his indigenous ancestry. They also reported that even if his ancestry could be confirmed, they cannot address how being an indigenous person affected his life circumstances.

[31] Just over two months following his convictions on June 29, 2021, Mr. Young was arrested on the current charges. Crown counsel notes that there is no evidence from Aboriginal Legal Services that Mr. Young had accessed its facility or other community organizations from the date of the last conviction. He notes however that even if he had accessed the community service resources, Mr. Young has not demonstrated an ability to comply with the terms of his probation. He has failed to comply with orders of the court in the past. The Crown argues that a release plan that simply requires him to voluntarily access indigenous community services, is not sufficient.

[32] I recognize that Mr. Young has faced unique challenges in his life. His mother died when he was young. He was placed with CAS from the age of 8 to the age of 21. He reconnected with his father in his late teens or early 20’s. His father was murdered when Mr. Young was 25 years of age. Mr. Young has had very little contact with his remaining family.

[33] Mr. Young’s affidavit does not set out in any detail how his indigenous heritage affected his life or how it may have been a factor in being before the court. I acknowledge that as an indigenous person, Mr. Young has access to indigenous community organizations. I note that Mr. Young states that he has had the support of Aboriginal Legal Services since 2015.

[34] I have considered whether there are release plans or other procedures that would be appropriate because of Mr. Young’s indigenous heritage that would satisfy the secondary ground for release. It is proposed that Mr. Young be released without sureties and on the basis that he will voluntarily access the indigenous community organizations. The proposed release plan does not offer any supervision. I am not satisfied that this release plan is sufficient to protect the public given Mr. Young’s record and the violent nature of the offence with which he is currently charged. I am of the view that without further protections in place there is a substantial likelihood of Mr. Young re-offending.

[35] In the bail context, the Gladue principles and section 493.2 do not supersede the requirements of bail. As noted by Schreck J. in R. v. E.B., 2020 ONSC 4383:

[R]egardless of the accused's circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group, at para. 42.

[36] I conclude that in the circumstances of this case, a detention order is required on the secondary ground.

[37] For the reasons set out above, I dismiss the Application.

DATE: February 2, 2022