R. v. Young, 2019 NLSC 71

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Young , 2019 NLSC 71 Date : March 26, 2019 Docket : 201804G0187 Her Majesty The Queen v. Jeffery Young Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast, or transmitted in any way. Before: Justice Brian F. Furey Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: January 23, 2019 Date of Oral Judgment: January 30, 2019

Summary: The Accused applied pursuant to

section 520 of the Criminal Code to have the decision of the Provincial Court Judge denying him bail on August 13, 2018 vacated. Held: The Court found that the Accused had not shown cause to vacate the Order of the Provincial Court Judge and the application was dismissed.

Appearances: Brenda Duffy Appearing on behalf of Her Majesty The Queen Mark Mills Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Moss, 2003 NLSCTD 110; R. v. Fewer, 2016 NLTD(G) 100; R. v. St-Cloud, 2015 SCC 27; R. v. Jacque,2008 NLTD 184; and R. v. Morales, (SCC), [1992] 3 S.C.R. 711 (S.C.C.). STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] Jeffery Young seeks a review pursuant to

section 520 of the Criminal Code, R.S.C. 1985, c. C-46 of the denial by aProvincial Court Judge to grant him judicial interim release. The decision of the Provincial Court Judge was given on August 13, 2018. [2] At the bail hearing before the Provincial Court Judge, Jeffery Young was facing one charge of breaching a recognizancecontrary to section 145(3) of the Criminal Code.

The recognizance arose from a number of charges Jeffery Young was facing, includingoffences under sections 163.1(2), 163.1(3), 163.1(4), 151, 271, and 733.1. [3] In his decision on judicial interim release, the Provincial Court Judge found that Jeffery Young should not be released. Heconcluded that Jeffery Young should be detained on the basis of sections 515(10)(

b) and (

c) of the Criminal Code. He stated there wasno need to consider section 515(10)(a). [4] Since the Provincial Court Judge’s decision, Jeffery Young has pleaded guilty to the charge of breaching a recognizance. OnNovember 1, 2018, he was sentenced to 30 days’ imprisonment on this charge. Mr. Young has served that sentence. the law [5]

Section 520 of the Criminal Code deals with the review of an order under

section 515. Section 520(7) states: 520(7) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by thejustice, (

b) the exhibits, if any, filed in the proceedings before the justice, and (

c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either

(

d) dismiss the application, or (

e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order providedfor in

section 515 that he considers is warranted. [6] Section 515(10) of the Criminal Code states: 515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [7] Mr. Young has the onus of proof to show cause on a balance of probabilities why the order of the Provincial Court Judgeshould be vacated.

The judge has only two options: to dismiss the application or to allow the application. [8] In R. v. Moss, 2003 NLSCTD 110, LeBlanc, J. set out the approach to be followed in a review under

section 520 of theCriminal Code. The review should not be a hearing de novo nor should it be a full appeal of the original decision. Nevertheless, somedeference is owed to the decision of the judge who denied bail at first instance. [9] At paragraphs 7, 11 and 12, LeBlanc, J. stated: 7. As was held in R. v. D.P.F., (NL CA), [1999] N.J. No. 353 (Nfld. C.A.), the nature or approach to a s. 520 reviewhas been somewhat inconsistent.

Cameron, J.A., in comparing reviews under ss. 520 and 521 with a review under s. 679 of the CriminalCode, described the nature of the review under s. 520 as "falling into the hybrid category". The strict approach to an appeal is not the testto be applied although some deference is to be given to the earlier judge's decision. As well, a review hearing is not to become a trial denovo. 11. The "hybrid" approach referred to by Cameron, J.A. falls somewhere between treating a s. 520 review as an appeal and a trial denovo.

I too am satisfied that the approach to be taken for such a review falls at neither end of the spectrum. The cases dealing with theapproach to s. 520 appear to suggest that the ambit of the review is wider than the application of the standard of appellate review but notto the extent of holding a trial de novo. What is required is for me to take a fresh look at the evidence presented before the original judgegiving some deference to any factual findings and inferences made. Any additional evidence offered is also to be taken into account inreviewing that decision.

I am permitted to exercise my own discretion in deciding whether the accused has discharged his onus on abalance of probabilities to show cause why the previous order should be vacated. Obviously if I find that circumstances have changedsince the first hearing or that the original judge misconceived the facts or made an error in law, this is relevant in the exercise of mydiscretion. As well, any exercise of discretion must be judicially considered and be fair to both sides. 12. One further comment to be made here relates to the approach of counsel or parties to a review hearing.

Based upon the approach tobe taken by the court under s. 520 I have described above, normally the hearing should proceed only when a transcript is available. Thispermits the reviewing judge to be aware of what evidence was presented at the original hearing and to consider the findings and reasonsof the hearing judge. Again, some deference is to be given to that judge's findings of fact and credibility. "Additional" evidence may be

placed before the review judge where the parties deem it necessary and the judge permits it. Such evidence should not amount to a rehashing of the testimony presented at the original hearing and nor should a review hearing be used by either party for a purpose ulterior to a show cause hearing. The approach, as stated above, is not to conduct a trial de novo. Unless a witness called at the original hearing has new evidence to offer, there should be no need to have that witness recalled at the review hearing. [ 10 ] In R. v. Fewer , 2016 NLTD(G) 100, Thompson, J. discussed the conduct of a bail review under

section 520 when he referred to the decision of the Supreme Court of Canada in R. v. St-Cloud , 2015 SCC 27 , at paragraph 6 : 6. The case law by which I am governed in this Application and the principle by which I must be informed are set out in the case of R. v. St-Cloud , 2015 SCC 27 (S.C.C.), a decision of the Supreme Court of Canada. I would note, in particular, paragraph 118 through 121, the following: 118 ... I am of the opinion that ss. 520 and 521 Cr.C . do not provide for a de novo hearing.

Thus, unless there is new evidence -- a subject I will address below -- the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary.

In addition, the reviewing judge has, in relation to the justice, no special expertise with respect to release. 119 I therefore have difficulty seeing any possible justification for allowing a reviewing judge, at all times, to substitute his or her assessment of the various circumstances for that of the justice. ... . . . 120 On the basis of the wording of ss. 520 and 521 Cr.C . , a comparison with other review provisions and with sentence appeals, and the nature of the decision being reviewed, I conclude that these sections do not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused.

The reviewing judge must therefore determine whether it is appropriate to exercise this power of review. 121 It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.

I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10) (

c) Cr.C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr.C . , the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. judicial interim release hearing in provincial court [ 11 ] In reviewing the decision of the Provincial Court Judge, I note that he stated Mr. Young faced the onus of proof on the judicial interim release hearing because of the nature of the charge under

section 145. That is referenced in section 515(6)(

c) which states if the accused is charged “with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or

section 679, 680 or 816”. [ 12 ] Mr. Young’s mother and father testified at the judicial interim release hearing. They were willing to act as sureties. They were also willing to attempt to be in their son’s presence at virtually all times. [ 13 ] The Crown opposed Mr. Young’s release stating that he should continue to be detained on the basis of the grounds set out subsections 515(10) (

b) and (c). The Crown submitted that the bail plan proposed by him was not going to ensure the protection or safety of the public or maintain confidence in the administration of justice. [ 14 ] Counsel for Mr. Young suggested that the bail plan was a very strict one. It essentially left him with his parents as sureties at all times. It virtually eliminated any likelihood or possibility that Mr. Young would have the opportunity to commit any offence. Counsel submitted that it should be sufficient to satisfy the Court that Mr.

Young’s continued detention was not necessary to protect the public, prevent the commission of further offences, or maintain confidence in the administration of justice. [ 15 ] In his oral decision given on August 13, 2018, the Provincial Court Judge stated that Mr. Young was charged with a number of very serious offences of a sexual nature that are referenced above in paragraph 2 of these Reasons. Mr. Young had been committed to stand trial in the Supreme Court on those charges. He had a related criminal record.

He was convicted of a number of serious sexual offences in 2014 and also had two prior convictions for having breached release conditions. [ 16 ] The Provincial Court Judge also stated: “Mr. Young did not testify at this judicial interim release hearing and did not indicate whether he would or would not comply with any conditions that I might impose”. [ 17 ] The law regarding section 515(10)(a) – (c), particularly paragraphs (

b) and (

c) was reviewed by the Provincial Court Judge.

[ 18 ] He outlined the various issues he must consider. These were: a. The nature and seriousness of the charges laid against Mr. Young; b. The presumption of innocence; c. A related criminal record of Mr. Young for similar types of offences for which he now faces trial; d. The nature of the breach of the recognizance charge which had been laid against him; e. Two prior convictions for having breached earlier release conditions; and f. No evidence before the court that Mr.

Young had undertaken to comply with any conditions which he might impose. [ 19 ] In conclusion, the Provincial Court Judge stated the following in making his decision: I conclude that Mr. Young’s release would cause the public to lose confidence in the administration of justice because of the serious nature of the charges laid against Mr. Young, the nature of the breach of recognizance charge and the evidence in support of it, and his previous record. I also conclude that Mr. Young’s detention is necessary to protect the public, particularly children, from being sexually exploited.

As a result, the Court rules as follows: Mr. Young is denied bail in relation to the

section 145 charge and is remanded into custody until dealt with according to law. Pursuant to

section 524 of the Criminal Code of Canada , all earlier release conditions are cancelled, and Mr. Young is also remanded into custody until dealt with according to law in relation to those outstanding charges. review hearing [ 20 ] At the review hearing, I heard the submissions of counsel for the parties. I also reviewed the affidavits of Mr. Young and his parents, the transcript of the two proceedings (the judicial interim review hearing and the oral decision), and the transcript of the hearing before another Provincial Court Judge who sentenced Mr.

Young on his conviction under section 145(3) of the Criminal Code . [ 21 ] In his affidavit, Mr. Young stated if he was released, he agreed to surrender himself into custody in accordance with any terms put forward by the court. He agreed to be bound by 14 specific conditions. He also acknowledged that he was aware that his failure to abide by any of those conditions would result in the strong likelihood that he would be remanded in custody until the outcome of the trial on his outstanding criminal charges. [ 22 ] The affidavits of Mr. Young’s parents were identical. Both Mr. Jeffery Young, Sr. and Ms.

Myra Young stated they were willing to act as sureties and to pledge $3,000 each to secure their son’s release. They were willing and able: a. to report to the Royal Canadian Mounted Police and to the Court if they became aware that their son was not following the conditions of release; and b. to allow their son to reside at their home in Ship Cove, Newfoundland and Labrador, and supervise their son until the conclusion of his trial in May 2019. Position of Mr. Young [ 23 ] Counsel for Mr. Young asked the Court to release his client on a new recognizance.

There has been a material change in circumstances since Mr. Young was denied judicial interim release on August 13, 2018. Counsel pointed out the facts that were set out at the sentencing hearing for the charge of breach of recognizance referred to mere possession of a cell phone that led to the breach. He noted the sentencing judge had stated in her decision at page 5 “. . . It’s aggravating in that he breached a court order, but there is nothing to suggest that there was anything more criminal than using the cell phone”.

The sentencing judge also stated at page 6: “However, other than the breach, there was no other – there’s no suggestion of any other untoward behaviour”. [ 24 ] Counsel submitted there has been a material change in circumstances. The facts that resulted in his detention have changed. He asserted that the facts were not correct before the Provincial Court Judge at the judicial interim release hearing. The true facts were those before the sentencing judge. Mr. Young was convicted of the charge for which he was denied judicial interim release. He has served his sentence.

He is aware of the consequences of not complying fully with any conditions and a breach of any other condition. [ 25 ] Counsel suggested R. v. Jacque , 2008 NLTD 184 , a decision of Goodridge, J. (as he then was) is similar to the matter now before this Court. [ 26 ] In R. v. Jacque , Goodridge, J. stated that the burden is on the applicant in a

section 520 bail review hearing commenting that the accused had to convince the court that the judge who denied bail had made an error in law or that there had been a material change in circumstances. The judge found that there had been a material change in circumstances and that Mr. Jacque could be released without endangering the protection or safety of the public, including the two complainants. [ 27 ] Counsel acknowledged that the breach of recognizance that Mr. Young pleaded guilty to was serious. He suggested there was no way to guarantee that Mr. Young would not breach a condition again. He submitted that there was nothing to indicate a substantial likelihood that this would occur.

[28] Counsel asked the Court to release Mr. Young on the strict set of conditions set out in his affidavit. He suggested these werestricter than the earlier conditions imposed on Mr. Young. He would reside with his parents in Ship Cove, Newfoundland and Labrador,and they would monitor him. Position of the Crown [29] Counsel for the Crown submitted that there has been no real and material change in circumstances. Mr. Young pled guilty tothe charge of breach of recognizance. She said it was an interesting argument to call a guilty plea new evidence.

At the judicial interimrelease hearing, the charge was an allegation. Now the charge is a proven breach of recognizance. Counsel pointed out that Mr. Youngnow has another criminal conviction meaning a longer criminal record. She suggested that a longer criminal record should actually makethe public more concerned. This Court should see that conviction as adding to the information the Court should take into considerationas to why Mr. Young should not be granted judicial interim release. [30] The affidavits filed by Mr.

Young and his parents suggest a weaker bail plan than was proposed at the judicial interim releasehearing. His parents are pledging less monies as sureties. The promise of Mr. Young’s parents to have around the clock supervision ofhim is not in the new bail plan. She said it was a step down in the bail plan. The Provincial Court Judge did not believe the original bailplan was a realistic plan.

Counsel argued this Court should have less confidence in the proposed bail plan. [31] In reviewing the Provincial Court Judge’s decision on judicial interim release, counsel referred to the factors the ProvincialCourt Judge considered in making his decision. These are set out above in paragraph 18 of these Reasons. Counsel argued that theseriousness of the charges Mr. Young is facing was not lost on the Provincial Court Judge. Some of these charges related to activitieswith a cell phone. She suggested that the use of the cell phone by Mr.

Young leading to the charge of breach of recognizance wasintentional and planned. He had hidden the cell phone in his car. Mr. Young’s criminal record was also quite recent. [32] The onus is on Mr. Young to show why he should be released because of an error in law or a material change in circumstances.Counsel submitted that the change in circumstances should be one which would make the Court feel more secure and certain in grantingMr. Young’s release. [33] Counsel concluded that there has been no change in circumstances. Arguably, it is worse because of Mr.

Young’s conviction onthe charge of breach of recognizance. Mr. Young has failed to meet the onus to show cause why the decision of the Provincial CourtJudge should be vacated. Counsel asked that the application be dismissed. analysis [34] I reiterate the comments of LeBlanc, J. in Moss where he stated, in part, at paragraph 11: 11 . . . What is required is for me to take a fresh look at the evidence presented before the original judge giving some deference to anyfactual findings and inferences made. Any additional evidence offered is also to be taken into account in reviewing that decision.

I ampermitted to exercise my own discretion in deciding whether the accused has discharged his onus on a balance of probabilities to showcause why the previous order should be vacated. . . . [35] I also adopt the comments of the Supreme Court of Canada in St-Cloud. [36] Thus, I see my role as having to take a fresh look at the evidence presented before the Provincial Court Judge and also toconsider any new evidence offered. [37] I have to consider whether Mr. Young has shown cause to vacate the order of the Provincial Court Judge by reference tosubsections 515(10)(

b) and 515(10)(

c) of the Criminal Code. [38] In R. v. Morales, (SCC), [1992] 3 S.C.R. 711 (S.C.C.) Lamer, C.J.C. stated as follows at paragraph 37 inrelation to section 515(10)(

b) at 736: 37 The public safety component of s. 515(10)(

b) provides that pre-trial detention is justified where it is necessary "for the protection orsafety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is releasedfrom custody, commit a criminal offence or interfere with the administration of justice". The appellant concedes, quite properly in myopinion, that danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention.

Ingeneral, our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime. . . . [39] At paragraph 39, he went on to say: 39 . . . Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justicewhile on bail.

Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with theadministration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public." Moreover,detention is justified only it is "necessary" for public safety. It is not justified where detention would merely be convenient oradvantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e). [40] I fully reviewed the transcript of the hearing before the Provincial Court Judge. I also reviewed the evidence of Mr.

Young andhis parents in the review hearing and the current judicial interim release hearing. [41] I find no evidence of error in law by the Provincial Court Judge in his decision. His findings that there was a substantiallikelihood that, if released, Mr. Young would commit a further offence and that his detention was necessary to maintain confidence inthe administration of justice having regard to all the circumstances were appropriate. conclusion

[ 42 ] Having carefully reviewed the transcript from the judicial interim release hearing before the Provincial Court Judge, the evidence offered relating to that hearing and the current review hearing, and the submissions of counsel for the parties, I find that Mr. Young has not satisfied me that there has been a material change in his circumstances from that outlined in the judicial interim release hearing before the Provincial Court Judge to justify vacating his decision. I find that Mr. Young has not shown cause to vacate the order of August 13, 2018 as granted by the Provincial Court Judge and I dismiss the application. _____________________________ Brian F. Furey Justice