R. v. B.(S.), 2013 ONCJ 505

Citation: R. v. B.(S.) , 2013 ONCJ 505 R. v. S.B. Between Regina and S.B. Ontario Court of Justice Metro East Toronto P. Kowarsky J.P. Heard: September 13, 2013 Judgment: September 16, 2013 Crown Counsel: Mr. B. Jones Defence Counsel: Mr. R. Pearce JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. KOWARSKY J.P. WARNING This is a judgment in relation to a young person as defined in the Youth Criminal Justice Act. Accordingly, it is subject to the publication limitations set out in sections 110(1), 111(1), 129 and 138(1) of that Act. A. INTRODUCTION 1 .

On Friday September 13 th 2013 S.B., a seventeen-year-old young man, appeared before me seeking an Order for judicial interim release. At the conclusion of the bail hearing, I reserved my decision until today. This is my judgment. 2 . Under section 29(3) of the Y.C.J.A. the onus is on the Crown to persuade the court, on a balance of probabilities, that it is necessary that S.B. be detained in custody pending the outcome of the proceedings against him. 3 . The Crown is seeking the detention of the accused on the secondary and tertiary grounds. 4 .

The case against S.B. was provided to the court by the Crown, who read in the allegations in accordance with the police synopsis. B. THE CHARGES 5 . The accused is charged with the following criminal offences which are alleged to have been committed by him on or about September 2 nd 2013:

a) Aggravated Assault;

b) Robbery while armed with a firearm;

c) Discharging a firearm with intent to wound;

d) Possession of a dangerous weapon;

e) Failing to comply with a Peace Bond. C. THE ALLEGATIONS AGAINST S.B. 6 . On September 2 nd 2013 the police were called to investigate a shooting which had occurred in the hallway of a high-rise building in Scarborough. Several people were involved in what the police say was an armed robbery. 7 . An argument ensued over a specific gang affiliation and a gun, which was alleged to belong to a member of a named gang, and stolen by a member of another named gang. During the robbery, the accused is alleged to have shot S.C. in the leg with intent to maim him.

S.C. is a young male person, who is well-known to the police. 8 . At the hospital, S.C. told the medical staff that he had been stabbed. However, it was clear to the attending physician that S.C. had been shot in the leg as well as stabbed, supposedly by another young person also involved in this armed robbery. 9 . From previous police involvement, the police know that the accused and the victim of the shooting, S.C., are known to each other. 10 . At the crime scene, the police found shell casings and blood. Another young male, C., lives in that building.

The police allege that on the following day, September 3 rd , C’s mother took the gun that had been used in the robbery from C’s bedroom, and threw it down the garbage shoot. 11 . On the following day, September 4 th , C. confronted his mother, telling her that he is being threatened because of the missing gun. 12 . The police conducted a search, and located the loaded gun in the garbage of the building. During a search of C’s bedroom, the police located $4000.00 in cash, and he was arrested. 13 .

The police allege that during a photo line-up which included a photograph of the accused, the victim S.C. did not identify the accused as the perpetrator of the crimes. The police, however, have indicated that they are aware that the accused, the victim and C are all members of youth gangs in the Scarborough area. 14 . According to the Crown Attorney, the accused has been arrested on multiple occasions, and this appears to have been corroborated by both proposed sureties, although the details of such arrests were not provided to the court. 15 .

While on bail for an offence not provided to the court, the accused was charged with two counts of breaching his recognizance and one count of obstructing justice. In March of this year, he pleaded guilty, was found guilty, and sentenced to probation for 12 months. This finding of guilt was admitted by the accused for the purpose of the bail hearing. D. THE PROPOSED SURETIES 16 . Defence Counsel presented two proposed sureties. The testimony of the accused’s father, I.B. is encapsulated as follows: • He has lived in Canada for some 20 years, and has the status of a Permanent Resident.

He and the accused’s mother are “not together, but we communicate.” • He has been working for Metro Foods as a loader in the shipping department for about 10 years, and earns approximately $3000.00 per month. • He resides on his own in an apartment in Scarborough together with his son, the accused, who used to live with him permanently until he was ordered to reside with his aunt in Ajax, Ontario. However, since the beginning of the summer of this year, the accused has been living with his father in Scarborough.

As he put it: “For the summer I brought him back to Scarborough.” • He would prefer his son to live in Ajax with his aunt in order to “get him away from the school and the company” in Scarborough. S.B.’s aunt is his surety, although it is unclear to the court in respect of what charge or charges he is on release, and required to reside in Ajax with his aunt. • He has been his son’s surety previously, but he’s not sure whether his son ever breached any of the conditions of his release at that time. • He is prepared to pledge $2500.00 towards the release of his son.

Although he concedes that he does not actually have that amount of money, he says that he could “come up with it.” • He does not know how many times his son has been arrested. As he expressed it: “I don’t count how many times he’s been arrested.” • He was present in court when his son was convicted of breaching his bail and obstructing justice in March of this year. In his words: “I really don’t know.

I was in court when he pleaded guilty, but I don’t remember anything about it.” • He knows that his son is on probation but he does not know the name of his probation officer because “his mom brings him and she has the information.” • When asked by the Crown attorney whether he asks his son what was discussed at the meetings with his probation officer, he replied: “He tells me what he’s supposed to tell me – I’m sure.” • S.B. was previously charged with “something like a chain in Scarborough Centre – something like that.”

• His son now “goes to school in Scarborough. Before, he was at school in Ajax.” • S.B. was alleged to have threatened the hall monitor at school, but “everything was thrown out. I think he was suspended” from school. • There have been so many arrests because his son is associating with the wrong people. He’s at the wrong place at the wrong time. • When he asks his son what happened, the response is “nothing happened.” 17 . The second proposed surety was the accused’s aunt C.C. In

summary, her evidence is as follows: • She is the accused’s aunt. She resides in Ajax, Ontario with her 17 year-old son. She is a hair stylist, who works from her home. She has savings of $6000.00, and is willing to pledge $3000.00 to secure the release of her nephew. • The accused lives with her in accordance with a court order, although he does reside in Scarborough with his father from time to time.

At the beginning of this summer the accused went to live with his father. • From the evidence presented to me it is not clear whether the aunt is currently his surety in respect of charges which he is facing in another jurisdiction or whether she was his surety previously. • She testified that “he had a case – I think it was robbery”. She doesn’t remember any details whatsoever, although she testified that at the time “he was living with me.” • When she talked to him about his charges, he says it wasn’t him or he didn’t do it.

She told the court that her nephew has been arrested “lots of times.” However, she does not believe that “he’s done these things.” • She doesn’t understand “that he has been found guilty in youth court for breaching his bail earlier this year.” • As she expressed it: “I don’t know if I can do any more – but I’ll try.” • When questioned by the Crown as to whether she would be prepared to sign as a Responsible Person, bearing in mind the possibility of facing jail time in the event of a breach, she said that she would. E. THE PLAN FOR RELEASE 18 .

Defence counsel proposed that the accused be released on a very strict bail, with his father and his aunt as his sureties. He would reside with his aunt in Ajax, and be under house arrest with few exceptions. He would attend school either in Ajax or Scarborough, and be forbidden from possessing any weapons. F. THE LAW 19 . The Crown is asking that the accused be detained on the secondary and tertiary grounds. 20 . On October 23, 2012, the Y.C.J.A. was amended in significant ways respecting bail.

Section 28 provides that all of the bail provisions contained in the Criminal Code continue to apply except to the extent that they are inconsistent with or excluded by the provisions of the Y.C.J.A. It follows that whenever there are inconsistencies or differences between the Y.C.J.A. and section 515(10) of the Criminal Code, the bail provisions of the Y.C.J.A. prevail. 21 . Consequently, in my view, since the grounds for detention are now set out in section 29(2) of the Y.C.J.A., the provisions of section 515(10) of the Criminal Code are excluded from youth bail hearings. 22 . Section 29(2) (

a) indicates that before even considering the grounds for detention, the court must establish that it has the jurisdiction to make a detention order at all. Accordingly, the court must first be satisfied, on a balance of probabilities, that either the youth has been charged with a “serious offence” or with an offence other than a “serious offence” and only if the youth has “a history that indicates a pattern of either outstanding charges or findings of guilt.” 23 . Section 2(1) of the Y.C.J.A. defines a “serious offence” as “an indictable offence under

an Act of Parliament for which the maximum punishment is imprisonment for five years or more.” 24 . The first issue for my consideration therefore is whether S.B. has been charged with a serious offence. He is in fact charged, inter alia, with Robbery with a firearm. Section 344 (1) (a.1) of the Criminal Code provides that it is an indictable offence for which the maximum punishment is life in prison. He is also charged with Aggravated Assault. Under section 268 (2) the maximum sentence for a conviction of this indictable offence is incarceration for a maximum of 14 years. 25 .

I am satisfied therefore that I do have the jurisdiction to consider an order for S.B.’s detention in pre-trial custody.

The secondary ground under section 29(2) (b) (ii) reads as follows: “A youth justice court judge or a justice may order that a young person be detained in custody only if the judge or justice is satisfied, on a balance of probabilities, 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.”

26. Section 29(2) (c) (ii) provides that the judge or justice must be satisfied, on a balance of probabilities, “that no condition orcombination of conditions of release would “offer adequate protection to the public from the risk that the young person might otherwisepresent.” 27.

In considering the accused's application for bail, I take into account his rights under the Canadian Charter of Rights and Freedoms: • To the presumption of innocence, which is the bedrock of our criminal justice system; • To reasonable bail; • Not to be deprived of his liberty or security except in accordance with the principles of fundamental justice. 28.

Furthermore, the abundant jurisprudence with respect to these rights illustrates that imprisonment prior to trial should be the lastresort; pre-trial detention is extra-ordinary in our system of criminal justice; and there are no categories of offences for which bail is not apossibility. Moreover, the Supreme Court of Canada held in R. v. Pearson, (SCC), [1992] 3 S.C.R. 665 that bail will bedenied only in a narrow set of circumstances. 29. As I am required to do, I have given careful consideration to the Declaration of Principle under

section 3 of the Y.C.J.A. Subsection(1) (

a) provides that “the youth criminal justice system is intended to protect the public by (

i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree ofresponsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address thecircumstances underlying their offending behaviour. “

Section 3. (1) (

b) explains that “in order to promote the long-term protection of the public; the criminal justice system for youngpersons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and mustemphasize “ numerous factors set out in this section. G. ANALYSIS 31. I deal first with the secondary ground. It is clear that S.B. has been charged with a serious offence.

The next question is whether, on abalance of probabilities, detention is necessary “for the protection or safety of the public, including any victim of or witness to theoffence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody,commit a serious offence.” In order to conform with the legislation, I am required to take into account – • all the circumstances • including whether there is a substantial likelihood • that if released on bail, the accused would commit a serious offence. 32.

As in all applications for bail, the court must take into account the apparent strength of the Crown’s case against the accused.Defence Counsel proffers that the Crown’s case is extremely weak as a result of the victim’s failure to identify S.B. as the perpetratorfrom a photo line-up which included a photograph of the accused. While that might appear to weaken the Crown’s case significantly withrespect to identification, there are other factors which point in the opposite direction. 33.

According to the police, the accused and the victim are known to each other and to the police, and that initially, after the attack, thevictim informed the police that S.B. had shot him. When he arrived at the hospital, however, he is alleged to have said that he had onlybeen stabbed, although it was clear to the attending doctor that the victim had also been shot in the leg. 34.

When addressing “all the circumstances” it behooves me to take into account the ever-prevalent “anti-snitching” rule whichpermeates the guns and gangs community, creating a barrier between the police and the potential witnesses, an extremely frustratingissue which impedes the ability of the police to secure evidence, to identify accused in order to solve crimes. 35.

The background to these proceedings strongly suggests that the victim did not identify the accused from the photo line-up because ofthis notorious anti-snitching rule of conduct, the breaching of which is known to result in serious, often deadly repercussions for theperpetrator. Consequently, I do not regard such failure as a factor which reduces the apparent strength of the Crown’s case against S.B. 36. C. is alleged to have been a party to this crime in one way or another. He lives in the building, and is alleged to belong to one or theother of the youth gangs named in the police synopsis.

During the search of C’s bedroom, the police located $4000.00 in cash; the factthat the police were led to the garbage shoot and located the still-loaded gun and shell casings which had been apparently used in theshooting by the accused collectively reveal that, on the contrary, the Crown’s case against the accused appears to rest on a strongevidentiary foundation. 37. As is the case in most bail hearings, the challenge for the presiding Justice is to determine the risk of release at a very early stage of

the proceedings when the forensic evidence has not yet been made available to the police and the Crown. The forensics will likely go along way towards establishing the accused’s responsibility or otherwise for the crimes which he is facing. 38. Needless to say, I am not able to say with certainty that if I released the accused on bail, he would commit a serious offence, as defined.

However, as Chief Justice Lamer, as he then was, stated in R. v Morales (SCC), 77 C.C.C. 3rd 91: “While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exactpredictability of future dangerousness is not constitutionally mandated.” 39. While I am fully aware that it is not the role of the Justice presiding in a Bail Court to pander to the hysteria and outrage of thecommunity, there are times such as these, when the surrounding circumstances of cases include an epidemic of gun violence, death,injury and destruction.

In such cases, I believe that the courts are obliged to consider with great care, the right of the community at largeto safety and protection when determining the accused’s right to bail. 40. It must be remembered that those of us who are privileged to preside on the benches of our courts, from the lowest to the highestlevels, are all ordinary citizens, who reside within the community. We read, hear and watch the news, and are equally concerned aboutsafety and protection. 41.

So when gun violence erupts in the proportions which we continue to see almost every day in the Greater Toronto Area, particularlythe brazen, senseless shooting of teenagers by teenagers, we, the Judiciary, cannot ignore these circumstances when considering judicialinterim release into the community. The nature of the offences and the plan of supervision impact directly on the safety of thecommunity. The stronger and more reliable the plan of supervision, the greater the protection. 42.

From all that I have read and seen, statistics reveal that the vast majority of gun related crimes are committed by people whose gunsare illegal and unregistered. It is paramount that these illegal firearms are eradicated from our streets, and the people who steal, import,distribute and use them must be held accountable even at the pre-trial stage of the criminal justice system. 43. R. v. Karamatakis, [2004] O.J. No. 5884 (Ont.S.C.) was a bail hearing with allegations of gun involvement by the accused. Atparagraph 4 J.D.

McCombs J. said the following: “The application for bail is being brought in the context of a very serious problem in our community related to possession of firearms.The only purpose of guns of this type is to kill people. There is no other purpose for these weapons. Their purpose is to be carried andconcealed so they can be used to intimidate and indeed kill people. They have no lawful purpose unless they are in the hands of peaceofficers. People are murdered on our streets. It may well be the applicant because of his youth and naivety failed to appreciate just howserious this conduct is.” 44. In R. v.

J.G., [2005] O.J. No. 4599 (S.C.J.), Nordheimer J. expressed the public’s concerns in relation to gun-use by young personsas follows at para. 36: “The issue of guns in our community, especially the possession of guns by young men, has been at the forefront of concerns regardingissues of public safety in this city over the last number of months. Citizens in Toronto are understandably appalled at what appears to bea proliferation of handguns in the city.

The alarm that naturally arises from that perception is dramatically increased by the apparentwillingness of certain individuals to use those handguns, very often in indiscriminate and horrifying ways that have resulted in dreadfulconsequences for entirely innocent people.” 45. Indeed, hardly a day goes by without news of young persons shooting or being wounded or killed by other young persons using guns,even in broad daylight while the perpetrators are alleged to have been riding on bicycles at the time of the shooting.

This ongoing cycleof violence is outrageous, and every effort must be made to put an end to it once and for all. It is against the backdrop of thisenvironment that the court must make a reasoned assessment of the risks involved in releasing a young person alleged to have shotanother young person in a residential building in Scarborough. 46. The Crown submitted two cases for my consideration. R. v. Gulyas, 2013 ONCA 68 , [2013] O.J. No. 417 is a case inwhich the accused is an adult, charged with second degree murder. The Ontario Court of Appeal dismissed the accused’s application forreview of his detention order.

I did not find this case to be particularly helpful. The case at bar is clearly distinguishable for reasonswhich include the fact that the accused in that case is an adult, charged with murder. 47. The second case presented by the Crown is R. v. J.T., [2013] O.J. No. 3320 where Youth Court Judge M.L. Cohen, for verycompelling reasons, denied a joint submission on release, and ordered the detention of the young person. In J.T. the young person wascharged with a number of gun and drug-related offences.

While on release, he was charged with further drug offences as well as withseveral charges of breaching his recognizance and his probation order. In addition, J.T. was facing charges of possessing two handguns,one of which was loaded and ready to fire, and possession of drugs for the purpose of trafficking. Although these allegations are moreextensive than those in the case at bar, there is indeed a very significant parallel, and that is the possession and use of firearms. 48.

Furthermore, as in the case now before me, Justice Cohen stated at paragraph 38: “The description of the allegations in the case werebrief. In these circumstances, I am unable to assess the apparent strength of the Crown’s case. I therefore conclude that this factor shouldnot play a significant role in my determination.” The jurisprudence acknowledges this type of situation, (See for example, R. v. E.T.,[2006] O.J. No. 1446 (O.C.J.) MacDonell J.) However, for the reasons which I have given, I am of the view that even at this earlystage of the proceedings against S.B., the Crown’s case appears to be strong. 49.

The ultimate question to be answered is whether conditions can be crafted which would reduce the risk of the accused's re-offending to an acceptable level. Moreover, as this case involves a 17 year-old young person,

pursuant to section 29 (2) (c) (ii) of the Y.C.J.A. prior to ordering detention, the justice must be satisfied, on a balance of probabilities, “that no condition or combination of conditions of release would offer adequate protection to the public from the risk that the young person might otherwise present.” H. THE ADEQUACY OF THE RELEASE PLAN 50 . In R. v. Cornel, [2011] O.J. No. 6262 (Ont.

S.C.) in considering the adequacy of sureties, the Ontario Superior Court made the following instructive comment: "For a surety to be sufficiently reliable one must be willing to make a very significant commitment to alter one's personal life on behalf of another person. In order to accept the surety, the court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time." 51 . Notwithstanding the apparent impecuniosity of both proposed sureties, that factor in and of itself, is of minor concern to me.

Of major concern, however, is despite their willingness to come forward and supervise S.B. I have doubts about their capability to do so, having regard to all the circumstances. 52 . Both proposed sureties appeared to be of the opinion that S.B. was not involved in the crimes with which he is charged. Largely, this is so because that is exactly what he has told them. Both his father and his aunt have been sureties for him before, but somehow or another he seems to get himself into trouble with the police often.

Both his father and his aunt acknowledge that S.B. has been arrested numerous times, although neither of them appears know any details of the arrests, breaches, or findings of guilt. 52. His father knows that his son is on probation, but is not really sure why or what the name of the probation officer is. When asked whether he talks to his son about what was discussed at meetings with the probation officer, he answered that “he tells me what he’s supposed to tell me. I’m sure.” That certainly does not bode well for his responsibility as a father let alone a surety for his son.

He doesn’t know when his son pleaded guilty or to what offences even though he testified that he was in court when this happened. And his testimony that “I don’t count how many times he’d been arrested” swings directly in favour of rejecting him as an appropriate surety, although as I have indicated when reviewing his testimony, there are other factors too, all of which in totality lead me to deny his candidacy as an adequate surety. 53 . With respect to his aunt, I find that she was either ignorant of any significant details about S.B.’s criminal involvement or unwilling to divulge any of them.

She explained that she is/was his surety; he has lived with her; when he went back to stay with his father in Scarborough at the beginning of this summer, she did not approve, and in her own words: “I don’t understand that he has been found guilty in youth court for breaching his bail earlier this year….I don’t know if I can do any more but I’ll try.” 54 . The plan does not involve any change whatsoever on the part of either of the proposed sureties. As the court held in R. v. Cornel ( supra) , a surety must be willing to make a very significant commitment to alter one's personal life on behalf of another person.

The plan here changes nothing at all, and it is precisely in such situations that the accused has got himself into serious trouble with the police. 55 . I note that the aunt did agree, if required, to have the accused released to her as a Responsible Person, and understood that under section139 of the Y.C.J.A. she would run the risk of incarceration in the event of her willfully failing to comply with the release order. However, I do not find that such a release order would add anything to the level of supervision required in this case. See: R. v. G.D.C., [ 2010] S.J. No. 56 (S.P.C.) . 56 .

I repeat the findings of Trotter J. of the Ontario Superior Court in R. v. Omary, [2012] O.J. No. 1118 , which I believe apply mutatis mutandis to my findings in the case at bar: The court was not persuaded that any order that it made, accompanied by sureties, will mitigate this risk to any substantial extent. The release plan that is proposed will not provide the level of supervision that is required. 57 . And finally, when considering the adequacy of the proposed sureties in R. v.

Gulyas ( supra ), the Ontario Court of Appeal, in confirming the detention order of the court below, found that the mother minimized or denied the events relating to her son’s previous conviction, and concluded that the proposed sureties were far more interested in standing up for the accused than they were in meeting the responsibilities of suretyship. These are my findings with respect to the plan of supervision proposed in the case against S.B. I. DISPOSITION 58 .

I conclude that no condition or combination of conditions of release would offer adequate protection to the public from the risk that S.B. may otherwise present. I am persuaded, on a balance of probabilities, that the Crown has met its onus on the secondary ground. Having made such a finding, I do not propose to consider the tertiary ground. 59 . Consequently, I order that S.B. be held in custody until such time as he has been dealt with according to law. 60 . I thank both Crown Counsel Jones and Defence Counsel Pearce for the excellent manner in which they presented their respective cases to the court. P.H.

Kowarsky Justice of the Peace