R v NJS, 2012 ABQB 479

Court of Queen ’ s Bench of Alberta Citation: R v NJS, 2012 ABQB 479 Date: 20120807 Docket: 120693098U1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - NJS Accused/Applicant Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

By Court Order, there is a ban on publishing information that may identify the accused as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act, s. 75(3). \ Editorial Notices: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. The restriction pursuant to the Criminal Code,

section 517 ended March 20, 2014.

_______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. B. Veit _______________________________________________________

Summary [1] NJS, a young person with no criminal record who is facing charges of arson arising out of a very costly fire set on June 10,2012, at the Kihew Asiny Saddle Lake Cree Nation high school and with other charges relating to the break in on the same date at theSaddle Lake Cree Nation Band Administration Office, asks for review of his denial of bail on the grounds that the youth court judgecommitted an error of law in applying s. 515(10)(

c) of the Code. The Crown is proceeding by way of indictment, and the young personhas chosen to be tried by a jury. [2] Mr. NJS has established that the bail judge, who was unfortunately not assisted by counsel at the bail hearing by referencesto the Supreme Court of Canada decision in Hall, committed an error of law: the broad impact of a serious crime on a community is notthe sole test for determining whether that community’s confidence in the administration of justice will, of necessity, be negativelyaffected unless an accused person is jailed before his trial.

Rather, as the Supreme Court of Canada put it in Hall: a judge can only deny bail if satisfied that in view of these factors [the apparent strength of the prosecution’s case, the gravity of theoffence, the circumstances surrounding the commission of the offence, including whether a rearm was used, and, the fact that theaccused is liable, on conviction, for a potentially lengthy term of imprisonment] and related circumstances, a reasonable member of thecommunity would be satisfied that denial is necessary to maintain confidence in the administration of justice.

In addition, as McEachernC.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269, the reasonable person makingthis assessment must be one properly informed about "the philosophy of the legislative provisions, Charter values and the actualcircumstances of the case" [3] Here, although the bail judge recognized that the wishes of the Saddle Lake Cree Nation as expressed in a June 12, 2012letter from its Chief could not be determinative of Mr.

NJS’s entitlement to bail, he failed to comment on the fact that the Chief’s letter,which referred to the three young persons charged as “offenders”, appeared to disclose a need for information concerning the philosophyof the criminal law relating to the presumption of innocence and the treatment of aboriginals and Charter values relating to bail.

Inaddition, not surprisingly since the Chief was presumably not aware of the details of the police investigation, the Chief’s letter did notdistinguish amongst the three people separately charged with these crimes in relation to how strongly each of the young persons waslinked by evidence to the crimes.

Finally, the bail judge failed to address the necessity of pre-trial imprisonment in light of the possibilitythat the Saddle Lake Cree Nation’s concern about security could be satisfied, by adopting the suggestion in the Chief’s letter to the effectthat the young persons charged should be banned from the reserve until the conclusion of the trial. [4] Neither sub-section 33(5) or (7) of the Youth Criminal Justice Act applies here because the judge who denied bail was ayouth justice court judge who was not a judge of a superior court. [5] In the result, Mr.

NJS has established that he is entitled to a fresh assessment of bail. Arrangements will not be made for theholding of that fresh bail hearing.

Cases and authority cited [ 6 ] By Mr. NJS: R. v Ellahib , 2005 ABQB 565 ; R. v Pemberton 2009 ABQB 107 . [ 7 ] By the court: R. v Hall 2002 SCC 64 Appendix A: Reasons for decision from Demetrick, Prov. Ct. J., denying bail 1. Background [ 8 ] Invoking s. 515(10)(c), Mr. NJS was denied bail by a Provincial Court judge; those reasons are attached as Appendix A.

Those reasons set out the general background to the charges. [ 9 ] The hearing before the Provincial Court judge was the second NJS bail hearing, the first having been held before a justice of the peace. [ 10 ] As he mentioned during the course of his reasons, Demetrick Prov. Ct. J. took great care in obtaining submissions from counsel concerning bail.

At the original hearing, the bail judge was told by the then prosecutor, a different prosecutor from the one appearing on this bail review, that “ Saddle Lake security viewed the video (of the school and the Band Office) and were immediately able to identify the accused and his two accomplices. ” Also, the bail judge was told by the prosecutor on that first occasion that two other young people, who are separately charged from Mr.

NJS but charged in relation to the same incidents, had “ identified the accused NJS as their third member. ” However, defence counsel indicated that: the security officers could not, in fact, identify the third person in the videos, that the police had a shoe print from the arson scene which they followed up by obtaining a search warrant for the residence of a relative of Mr. NJS ’ s where he had recently stayed, and examined all of Mr. NJS ’ s shoes found there, and could not find a match, and, that both of the two other people accused of the same arson had not identified NJS as the third member of the group.

The prosecutor then modified his original statements to the court, agreeing that Mr. NJS was not identified on the videos and that only one of the other two individuals gave a statement implicating Mr. NJS. The bail judge then adjourned the hearing to hear more from both counsel about the apparent strength of the Crown ’ s case. [ 11 ] After the adjournment, the prosecutor informed the bail judge that one of the two other people charged with the arson, TY, told the police that he was with NJS during the commission of the crimes.

The prosecutor informed the bail judge that none of the three individuals are charged on the same information in order to allow the Crown to call each of the three persons against the other. The prosecutor also informed the bail judge that a person named JM, a relative of one of the other two persons charged with arson - CD - was trying to hide the shoes of CD when the police arrived at the M residence and told the police that CD was not involved and that “ [NJS] is the guy you want. ” CD was positively identified on the two videos.

JEM, who is the grandmother of CD, told the police that NJS was at her home during the evening when the arsons were committed.

After having heard that NJS was in fact arrested at his mother ’ s home, despite the prosecutor ’ s representation that the accused had made efforts to avoid apprehension, and that when he was arrested the clothes NJS was wearing were not the clothes seen on the videos, the bail judge again adjourned the bail hearing to allow both counsel to obtain more information. [ 12 ] When the bail hearing resumed for the third time, the prosecutor told the bail judge that JM was not at JEM ’ s home when he made his statement to the police.

As to the statement from TY, the prosecutor informed the bail judge that the police were taking a warned, K.G.B., statement from Mr. TY, whose mother was with him, when the police officer left the room. Then, in the words of the prosecutor, “ it seems to me that both [TY] and his mother forgot or ignored the fact that there were cameras in the room ” and the young person and his mother had an intense discussion. When the police officer came back into the room, Mr. TY eventually told the police officer that he, CD, and NJS were at the school. Indeed, Mr.

TY told the police that the idea of going over to the school was NJS ’ s idea. Defence counsel informed the bail judge that although she has not been able to see the whole of the interaction between TY and his mother while the police officer is out of the interrogation room because of a technical problem in playing the pertinent video, she does note that, while the police officer is out of the room, his mother is exhorting Mr. TY to implicate Mr. NJS: “ Then she makes a reference to something that I don ’ t understand.

We would have to look at the tape further, and it has to do with some previous relationship or something that ’ s happened between these two. And the inference I drew from it was that there was some history here that the mother is out to capitalize on in exhorting her son to, umm, to point the finger at NJS. ” Defence counsel also notes that there is a reference by Mr. TY to a “ Chevez ” , which is not, apparently, NJS ’ s nickname, but is a reference to a different individual.

Defence counsel also informed the bail judge on this occasion that JEM is in fact NJS ’ s paternal grandmother, as well as a relative of CD ’ s, that JEM had told the police

on the 13 th that NJS had been there the night before, and the police then found NJS at JEM ’ s place on the 14 th . [ 13 ] I also observe that, during the course of the bail hearing, although the prosecutor said something to the effect “ if the accused is serious about wanting to be released he must . . . ” , the bail judge rigorously noted that it was the Crown who had the obligation of proving that the accused should be detained, not the other way around. [ 14 ] The letter from the Chief of the affected reserve, dated June 12, 2012, states The Chief and Council of the Saddle Lake Cree Nation believe that it is in the best interests of the community that the young offenders not be released from custody.

If it is your judgment that they be released, we request conditions be placed on these young offenders so that they are prohibited from entering/residing on the Saddle Lake Cree Nation until all court matters are dealt with. Thanking you in advance for your utmost consideration. (Emphasis in original) [ 15 ] No firearm was used in the commission of the offences in question. 2.

Principles underlying bail for young persons [ 16 ] Parliament has determined that the same principles which it set out in s. 515 of the Code apply to bail for young persons: s. 28, Youth Criminal Justice Act . [ 17 ] Section 29(1) of the YCJA states that detention of young persons as a social measure is prohibited. Although it is not relevant to the bail review hearing, because the original bail hearing dealt only with s. 515(10)(

a) and ( c ), s. 29(2) of the YCJA states that, in considering whether s. 515(10)(

b) applies to a young person, a youth justice court should presume that detention is not necessary if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(

a) to (c). [ 18 ] Section 33(5) of the Youth Criminal Justice Act does not apply here because the youth justice court judge who denied bail was not a judge of a superior court. Section 33(7) of the Youth Criminal Justice Act does not prevent this application being made to a judge of the Court of Queen ’ s Bench because the judge who made the last bail decision was a youth justice court judge. [ 19 ] Neither counsel addressed before me the potential impact on this bail review of s. 31 of the YCJA; it may well be that that

section requires a youth court bail judge to consider, before detaining a young person in custody prior to trial, placing the young person in the care of a responsible person. Because no comments were offered on this provision of the Act, I will not consider this provision in the reasons that follow. 3. Principles underlying the third justification for pre-trial detention [ 20 ] Any consideration of the appropriate application of Parliament ’ s third justification for pre-trial detention must commence with the decision of the Supreme Court of Canada in Hall .

I repeat some passages from that decision here because, unfortunately, they were truncated from the published version of Pemberton : 31 I conclude that a provision that allows bail to be denied on the basis that the accused's detention is required to maintain confidence

31 I conclude that a provision that allows bail to be denied on the basis that the accused's detention is required to maintain confidencein the administration of justice is neither superfluous nor unjustified. It serves a very real need to permit a bail judge to detain an accusedpending trial for the purpose of maintaining the public's confidence if the circumstances of the case so warrant. Without publicconfidence, the bail system and the justice system generally stand compromised. While the circumstances in which recourse to thisground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available. . . . 40 Section 515(10)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on thebasis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact theaccused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question thepublic's confidence in the administration of justice.

Whether such a situation has arisen is judged by all the circumstances, but inparticular the four factors that Parliament has set out in s. 515(10)(c) -- the apparent strength of the prosecution's case, the gravity of thenature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.

Where, as here, thecrime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the publicconfidence upon which the bail system and the justice system as a whole repose. 41 This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole. The questionis whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament has hedged thisprovision for bail with important safeguards.

The judge must be satisfied that detention is not only advisable but necessary. The judgemust, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice.Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judgecannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on thefactors Parliament has specified.

At the end of the day, the judge can only deny bail if satisfied that in view of these factors and relatedcircumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in theadministration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), (BC CA),119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about "the philosophy of thelegislative provisions, Charter values and the actual circumstances of the case" (p. 274).

For these reasons, the provision does notauthorize a "standardless sweep" nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rightsof the accused and the need to maintain justice in the community. In sum, it is not overbroad. (Emphasis added) [21] It is in that context that our Court of Appeal noted in White that, as a matter of principle although each case will be decidedon its own facts, “it will be an unusual case where public confidence in the administration of justice is so imperilled that it requires anaccused to be detained prior to trial.” 4.

Did the bail judge misapply the principles relating to the third ground for pre-trial detention? [22] In my respectful view, the bail judge was correct in concluding that the “concerns and sentiment of community members . . .can have a direct impact upon the issue of maintaining confidence in the administration of justice.” Indeed, the SCC in Hall, the majoritynoted that the bail judge had properly noted “the high level of concern in the community”: para. 42. [23] Also, although at this stage of the proceedings the prosecution case against Mr.

NJS appears to be based entirely on the KGBstatement of a young person who is charged with the same crimes and who puts the blame on Mr.

NJS, I do not challenge the youthcourt judge’s assessment “that the prosecution’s case against the youth is apparently strong.” [24] However, in my view the bail judge has failed to comply with the other principles which are subsumed into s. 515(10)( c),including the obligation to consider whether denial of bail is a “necessity.” Not only did the bail judge fail to consider whether denyingbail was necessary, the very letter from the Chief suggested at least one alternative to pre-trial imprisonment which was banishment fromthe reserve.

[ 25 ] Another obligation of a bail judge when considering whether the third ground for pre- trial detention has been established is to consider whether the persons whose faith in the administration of justice might be imperilled are what the Supreme Court has characterized as “ reasonable, ” by which they really mean informed as well as somewhat dispassionate.

Here, by referring to all three accused as offenders, it is clear that the Chief may not have appreciated, in the immediate aftermath of a devastating fire and of having his own office ransacked, the values in our justice system not only dealing with the presumption of innocence and the constitutional right to bail, but also the unique position of aboriginals even when aboriginals have been found guilty beyond a reasonable doubt.

Moreover, the Chief ’ s letter was written on June 12, two days after these terrible events, and at a time when police evidence linking each of the accused to the crimes had probably not been shared with the Chief; the bail hearing in this matter commenced on June 21 and, even on that date, the prosecutor was mistaken about some of the information he put before the bail judge.

Therefore, on June 12, the Chief was presumably not aware of the actual evidence the police had to link NJS to the arson and break-in. [ 26 ] In those circumstances, although the bail judge took great care in assessing whether the prosecution had established that Mr. NJS must be kept in custody pending his trial, I come to the conclusion that the bail judge committed the errors of law outlined above. [ 27 ] In the result, Mr. NJS is entitled to have the issue of bail considered afresh. [ 28 ] Given the strictures of time in St.

Paul, and the need for consideration of whether an error of law had been committed, the court did not embark on a fresh bail hearing for Mr. NJS. That hearing should now be arranged. Heard on the 23 rd day of July, 2012. Dated at the City of St. Paul, Alberta this 3 rd day of August, 2012. J.B. Veit J.C.Q.B.A. Appearances: Patrice L. Taylor, (Lac La Biche, Alberta) for Mr. NJS S. H. Fontaine for the Crown

Appendix A 11 Ruling (Bail) 12 13 THE COURT: Be seated, please. In the matter then of the 14 ruling and bailing hearing concerning the youth [NJS], the youth is charged 15 with five indictable offences. At the time of the occurrence of the offences with which he 16 is charged, the accused youth [NJS] was about 17 years and six weeks old. He is enrolled 17 in school at Ashmont, Alberta but has not been attending school there since mid March of 18 this year.

He is not employed. 19 20 His father is not involved in his life, and his mother lives on the Saddle Lake Reserve a 21 few miles east of the Saddle Lake townsite where the offences are alleged to have 22 occurred on June 10 of 2012. The youth lives there with her but has also spent time in 23 other residences. 24 25 The offences charged are serious, both by legal category, especially those involving an 26 allegation of arson, and by their facts.

There is strong evidence three persons broke into a 27 school at Saddle Lake and lit a fire therein plus did other wilful damage resulting in many 28 thousands of dollars of loss, perhaps even into a six-figure loss. 29 30 At the same time period, the Saddle Lake Band Administration Office was broken into; 31 and serious damage was done therein, especially in the Chiefs office and an office 32 adjacent to the office of the Chief of the Saddle Lake Band. 33 34 Surveillance cameras at the school showed three people doing the damage. Two of the 35 three were quickly identified by a person viewing the tape.

One of the two quickly 36 identified in that fashion in the presence of his mother in a taped interview with an 37 RCMP officer named the accused [NJS] as being the third person, moments earlier saying 38 to his mother when the peace officer was absent from the interview room that he had 39 reluctance to name his bros as he called them. 40 41 Nonetheless, having expressed that sentiment to his mother who very strongly urged him

1 to be truthful, he then in the presence of the peace officer certainly thereafter named 2 Mr. [NJS] as one of the parties involved and made a very brief reference to someone else. 3 4 During the bail hearing, early in the bail hearing, Crown counsel conveyed to the Court 5 sentiments and concern from the Chief of the Saddle Lake Band in which the Chief 6 obviously had communicated to Crown counsel a desire that the accused youth be denied 7 release or, if released, he should be prevented from being on the Saddle Lake Reserve 8 lands. 9 10 I am satisfied that with the extent of the damage involved in the crimes and the fact that 11 they were in essence a serious attack on two public institutions of considerable importance 12 to the Saddle Lake community and population generally at Saddle Lake, there is a general 13 and substantial community concern as expressed by the Chief to Crown counsel about 14 these crimes and about those who committed them. 15 16 Crown counsel submits the youth should be denied release under section 515(10)(

a) and 17 515(10)(

c) of the Criminal Code . These are often referred to as the primary and tertiary 18 grounds for denial of release. The youth has no previous record; and in that context, the 19 Crown has not urged that section 515(10)(

b) be applied as reason to deny release. In that 20 context, I limit my consideration to the potential effect of (10)(

a) and (10)(

c) of

section 21 515. 22 23 Defence counsel argues l0(

a) should not apply since the accused has no record. I hold 24 that lack of record does not automatically rule out the applicability of (l0)(a). 25 26 Although I do have misgivings about whether someone who would participate in the five 27 particular crimes in issue would have enough residual respect or fear of the law to show 28 up in court if released, I do not find that here the Crown has satisfied, the onus on the 29 Crown, that outright detention of the youth is necessary to ensure his appearance in court 30 on the charges.

In particular, when I consider his age and circumstances, I am not 31 concerned he is going to be inclined or able to flee to some distant place like Bolivia or 32 the Cayman Islands to live and thereby frustrate the ends of justice. 33 34 I tum, therefore, to consider whether denial of release should occur under

section 35 515(10)(

c) of the Criminal Code . Defence submits the release of the youth under very 36 strict conditions would suffice and that the view of the Chief of the Saddle Lake Band is

37 not relevant. I recognize the issue must be decided under the provisions of

section 515 of 38 the Code and to the degree they are modified by the Youth Criminal Justice Act 39 provisions. 40 41 Although I conclude the Chiefs concern and preference cannot be determinative in the 1 bail hearing, I nonetheless conclude it is not totally irrelevant either.

Section 515(10) of 2 the Criminal Code talks about maintaining confidence in the administration of justice and 3 requires the Court to consider whether detention is necessary to maintain confidence in the 4 administration of justice. 5 6 I conclude that where there are serious crimes in issue, serious crimes that have an 7 unusual community impact, the concerns and sentiment of community members and 8 especially how that is responded to in a bail hearing can have a direct impact upon the 9 issue of maintaining confidence in the administration of justice. 10 11 I appreciate the utilization of section 515(10)(

c) must be done with great care because that 12 provision in the Criminal Code constitutes a double-edged sword when it comes to the 13 issue of maintaining confidence in the administration of justice.

If judges are overly timid 14 and reluctant to deny release where serious crimes obviously have been committed and 15 which have an unusual impact on a community; that reluctance could have a negative 16 effect on maintaining confidence by the public at large in the administration of justice. 17 18 Conversely, if judges deny release to persons too quickly and too often, that, too, could 19 hurt the public's confidence in the administration of justice, could it diminish it. 20 21 There are always in bail hearings important conflicting interests.

On one hand, there is 22 the interest of the accused person who under our law is presumed innocent unless -- until 23 proven guilty according to law. There is the interest of that accused person in 24 maintaining liberty, maintaining the ability to come and go as that person chooses. 25 26 There are conflicting interests.

There is the interest in the public at large to be protected 27 from lawlessness, particularly where serious lawlessness of a criminal nature is involved. 28 There is the interest of the community and the society at large in seeing to it that where 29 persons are charged, matters proceed through the court in reasonably prompt and orderly 30 fashion so that justice is not frustrated and denied through a long passage of time 31 sometimes caused when the persons who are required to attend and face proceedings do 32 not attend.

33 34 In this case, the case of the youth [NJS], the Court has heard from Crown and defence 35 counsel to an extent that goes substantially beyond -- and is a greater depth -- than usually 36 occurs in bail hearings. The Court has heard counsel's analysis of how they interpreted 37 video evidence amongst other things. 38 39 Having considered the factors in section 515(10)(c), I do conclude that where it comes to 40 that particular provision, (c), the Crown has satisfied the onus on the Crown for a denial 41 of release to the youth under that provision.

Despite the youth's lack of record, amongst 1 being satisfied of other things listed in 515(10)(c), I am satisfied that the prosecution's 2 case against the youth is apparently strong on the offences, being mindful that the youth's 3 counsel has submitted clearly to the contrary; but that is the Court's conclusion. 4 5 And I am satisfied that these offences have had an unusual and considerable impact upon 6 the community in which they occurred, that this is not just, as is usually the case with the 7 commission of a crime, an individual person or an individual family suffering substantial 8 and direct harm and, of course, society indirectly suffering thereby a generalized harm.

In 9 this case I am satisfied that the offences that occurred here involving substantial costly 10 damage to two public institutions at Saddle Lake has had a broader impact upon that 11 community and the members of that community. 12 13 In that context then and for those reasons, the release of the youth is denied. He is 14 ordered detained in custody. As part of the detention order, pursuant to section 515(12) 15 of the Criminal Code , I direct that the youth [NJS] abstain from communicating 16 directly or indirectly with [CD] -- and what is the name of -- first name of 17 [TY]? 18 19 MR.

BRANDT: [T], [...] – 20 21 THE COURT: Yes, and [T] -- and the middle name is? Is it 22 just [T]? 23 24 MR. BRANDT: I'm sorry, there is a middle name; but I can't 25 remember what it is. 26 27 THE COURT: All right. So the communication prohibition

28 will relate then to [CD] and [TY]. That is the Court's ruling then. 29 30 The ruling having been made, Ms. Taylor, there is a request to adjourn to what date then 31 for plea? 32 33 Plea 34 35 MS. TAYLOR: We could enter a plea right now, Your Honour, 36 not guilty -- 37 38 THE COURT: All right. 39 40 MS. TAYLOR: - - and set a trial date 41