R v CKG, 2015 ABQB 746

Court of Queen ’ s Bench of Alberta Citation: R v CKG, 2015 ABQB 746 Date: 20151125 Docket: 150560902U1 Registry: Edmonton IN THE MATTER of the Criminal Code of Canada , R.S.C. 1985 c. C-46 and

Part 60 of the Alberta Rules of Court AND IN THE MATTER of a decision made by Honourable Kenneth A. Holmstrom, Assistant Chief Judge, Edmonton Family and Youth Division, Provincial Court of Alberta respecting sections 527 and 515 of the Criminal Code Between: Her Majesty the Queen Crown (Applicant) - and - CKG Respondent - and - The Honourable Kenneth Holmstrom, Judge of the Provincial Court of Alberta, Family and Youth Division Respondent (Not a Party to the Application) Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , sections 110(1) and 111(1).

No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . No one may publish any information that may identify a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person. NOTE: This judgment is intended to comply with the restrictions so that it may be published. _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________ [ 1 ] The Crown seeks an order in the nature of Mandamus with Certiorari in Aid. The Crown does so because a judge of the Provincial Court of Alberta, Family and Youth Division, refused to allow the Crown to show cause in relation to a young person charged under the Youth Criminal Justice Act because of the manner in which she was brought to his courtroom. [ 2 ] The young person was 16 years of age at the time the offence was alleged to have been committed.

It is alleged that she, while a serving prisoner at the Edmonton Young Offenders Centre (EYOC), assaulted two staff members. The assault is alleged to have taken place on May 4, 2015. It was investigated on that day. Members of the Edmonton Police Service went to EYOC to investigate the matter. They interviewed those who claimed to have been assaulted.

At that time, they formed reasonable and probable grounds to charge the young person with the offences that are outstanding. [ 3 ] While at EYOC, on May 4, 2015, the investigating officers did not arrest, charter, caution or advise the young person that she was going to be charged with these offences. Her release date from the facility was set for May 17, 2015. On May 5, 2015, one of the investigating officers requested a judge’s order to transport the young person to court. No process was issued pursuant to the provisions of the Criminal Code to bring the young person before the court.

She was transported to court on Friday, May 15, 2015, pursuant to a judge’s order that was prepared on May 14 after the Information charging the young person with the offence was sworn on May 13. Nine days passed from the time that the investigating officers had grounds to lay the charge and the date that the Information charging the young person came into existence. The young person was brought before the court by CCTV on the last court day before she was scheduled to be released into the community. [ 4 ] Throughout this period, the young person had counsel.

A member of the Youth Criminal Defence Office represented her on the charges that resulted in her incarceration and had been instrumental in crafting a sentence that resulted in community supervision upon her release from custody. [ 5 ] When the young person appeared in court on May 15, 2015, her counsel was not informed of the appearance. He was not available on that day. Her parents were not informed of her appearance in court. She was not told why she had to make an appearance on that day. On the 15 th day of May, the prosecutor handling the list asked to show cause in relation to the young person.

The young person has had significant contact with the youth system and before she could be considered for judicial interim release, a comprehensive plan that would ensure her attendance and protect the public would have to be formulated. Duty counsel, not knowing in advance of the young person’s appearance, was handicapped in offering such a comprehensive plan when the Crown prosecutor asked to show cause. Instead, she objected to the Crown’s request and asked the presiding judge to refuse to hold a show cause hearing and instead release the young person on the community supervision portion of her sentence.

He agreed to this request. The young person was released and told to return to court the following week with her choice of counsel. She did. [ 6 ] The original application brought by the Crown has become moot as the young person has had a bail hearing in relation to these charges and others as she makes her way through the system. Trial dates have been set. She is subject to conditions imposed after her release was properly addressed.

Still, the Crown and defence counsel asked to be allowed to argue this matter in order to seek the direction of this court as to how this specific situation should be addressed in the future. Apparently, the use of judge’s orders without any other process being initiated has become common in relation to young persons who are incarcerated when further allegations of wrongdoing are revealed or discovered. [ 7 ] It appears as if the young person was brought to court pursuant to the judge’s order because it was expedient to do so. It is easy for the investigating police service to use this procedure.

They investigate. They decide that charges are appropriate. Rather than employing the Criminal Code sections permitting them to process the young person, they merely swear an Information, request a judge’s order and have the young person attorn to the jurisdiction of the court. This procedure does not encumber the investigating officers or the staff housing the prisoner with any extra work. This does not appear to be a conscious choice on the part of the investigating officers to interfere with the rights of the young person but it has the same effect.

Expediency and efficiency cannot justify interfering with the rights and protections given to those who are charged with wrongdoing by the state. [ 8 ] The use of a judge’s order in these circumstances to compel the appearance of a young person before the court is offensive for three reasons. It ignores the provisions of the Youth Criminal Justice Act . It ignores the provisions of

Part XVI of the Criminal Code that are designed to compel the appearance of an accused before a court of competent jurisdiction. This part also deals with potential forms of interim release. Lastly, it ignores enshrined rights guaranteed by the Canadian Charter of Rights . A

Section 527 judge’s order has a narrow application. It is used in order to bring someone before a court when they are incapable of presenting themselves due to a lawful incarceration. It delivers the body to a scheduled appearance that requires the individual’s presence. It is not designed to compel an appearance in the first instance except in extraordinary circumstances. [ 9 ] Section 25(1) of the Youth Criminal Justice Act guarantees a young person’s right to counsel at any stage of the proceedings. This fundamental right guaranteed by the Act was subverted in this instance. Section 26(1) was not observed.

No notice was given to the parents of the young person that these charges had been proffered against her. Section 33(1) of the Youth Criminal Justice Act guarantees that a young person will have two opportunities to obtain release pursuant to

Section 515 of the Criminal Code . In this case, by taking the young person directly before a judge of the Provincial Court, the opportunity to obtain release at an earlier time was lost. These three individual violations of the Youth Criminal Justice Act are significant and all came about because of the manner in which this young

person was processed. [ 10 ]

Part XVI of the Criminal Code contains a comprehensive scheme to ensure the attendance of individuals charged with an offence without taking them into custody and a scheme to ensure that individuals are released when it is appropriate to do so. These provisions ensure that there is a mechanism in place to guarantee that ones’ rights guaranteed by

Section 11(

e) of the Canadian Charter of Rights are not breached. No one is to be denied reasonable bail without just cause.

Part XVI allows investigating peace officers to release individuals who have been charged without taking them into custody. Various forms of release are permitted in this part. If the investigating officers cannot in good conscience release the individual, procedures are in place to ensure that the alleged offender appears before a judicial officer in order to seek release or to have the Crown show cause why release is not appropriate. The process is designed to obtain a just result in relation to judicial interim release applications.

It is premised on the concept that both parties will be properly prepared to make their representations before a judicial officer who will make the ultimate determination. In order to make proper submissions, the accused must know the allegations that must be met. The accused must have an opportunity to consult counsel and address concerns that the Crown might have in relation to release into the community. The quality of the decision made is directly related to the quality of the information presented to the judicial officer.

In this case, the young person had no opportunity to properly prepare for the Crown’s request to show cause. Trial by ambush is a concept that is foreign to our judicial system. [ 11 ]

Section 11(

e) of the Canadian Charter of Rights guarantees that this young person had the right to be informed without unreasonable delay of the specific offence she was facing. A decision to charge her was made on May 5, 2015. She became aware of the charges she was facing upon her appearance in Youth Court occasioned by the judge’s order that had been obtained the day before. Although she had counsel acting for her on a number of matters who was familiar with her personal antecedents, she was never allowed to instruct counsel before being presented to the court.

These violations are exacerbated by the fact that she is a young person who is to be treated in accordance with the philosophy underlying the Youth Criminal Justice Act . Young people are to be treated differently and to be afforded greater protections than adults. All of this seems to have been ignored in order to make the task for the investigating officers easier. [ 12 ] The shortcuts that seriously undermined the protections given to this young person cannot be permitted to continue.

It seems somewhat ironic that she received much less consideration than someone charged with similar offences who was at large in the community. That person would be given the full protection of the provisions of the Criminal Code , the Youth Criminal Justice Act, and the Charter of Rights . Because the young person was in custody on other matters, her rights were ignored. This is unacceptable. It is important that young persons who are in custody and who become the subject of further investigations that lead to additional charges be brought into the system in a timely fashion.

Bringing them into the system in a timely fashion cannot justify ignoring any of the rights that they are guaranteed by the Criminal Code, the Youth Criminal Justice Act or the Charter . The full protection that is given to any young person through these enactments must be rigorously maintained. [ 13 ] In order to do so, the following procedure should be followed. Before a judge’s order can be obtained pursuant to

Section 527 of the Criminal Code to bring an imprisoned young person before the court to appear on new charges, the following should happen. Once the policing agency becomes aware that reasonable and probable grounds exist to charge the young person with an offence, an Information should be sworn pursuant to

Section 504 of the Criminal Code . A warrant to compel the appearance of the young person in docket court should be sought pursuant to Section 507(4) of the Criminal Code . Once that warrant has been obtained, the appropriate notice pursuant to Section 26(1) of the Youth Criminal Justice Act should be served upon the parents of the young person. Once this has been done, a judge’s order to bring the young person before the court at a specified time should be sought. Once the young person is before the court, the warrant should be executed.

Once the young person is before the court, he or she would have an opportunity to seek judicial interim release or the Crown would have an opportunity to show cause why that release was not appropriate. If this application has to be deferred, it can be done at the request of either party. [ 14 ] If this procedure is followed then the rights of the young person are protected. He or she can seek the assistance of counsel and properly prepare for any application for judicial interim release.

Modifications to this scheme, such as appearing by CCTV, would be permitted as long as the protections afforded the young person are not compromised in any fashion. Heard on the 18 th day of November, 2015. Dated at the City of Edmonton, Alberta this 25 th day of November, 2015. Sterling M. Sanderman J.C.Q.B.A. Appearances:

Wade Mark, Alberta Justice for the Crown Nathan A. Benron, Youth Criminal Defence for the Accused