R. v. H.(B.A.), 2011 ONCJ 897

Citation: R. v. H.(B.A.), 2011 ONCJ 897 R. v. B.A.H and C.L. Between Regina and B.A.H. and C.L. Ontario Court of Justice Toronto P. Kowarsky J.P. Heard: December 2, 2011 Judgment: December 2, 2011 JUDICIAL INTERIM RELEASE HEARING REASONS FOR JUDGMENT P. KOWARSKY J.P. WARNING This is a judgment in relation to young persons as defined in the Youth Criminal Justice Act. Accordingly, it is subject to the publicationlimitations set out in sections 110(1), 111(1), 129 and 138(1) of that Act. 1.

This is an application for judicial interim release by B.A.H. and C.L., young persons within the meaning of the Youth Criminal JusticeAct. Both accused are currently on release for other indictable offences, and they are now before this court facing an indictable offence.Consequently, the onus is reversed so that each accused must persuade the court, on a balance of probabilities, on all three grounds undersection 515 (10) of the Criminal Code, that it is not necessary that she be detained in custody pending the outcome of the proceedingsagainst her. 2.

The Crown is seeking the detention of both accused on the primary, secondary and tertiary grounds. At the outset let me say that I amsatisfied that the presumption against detention on the secondary ground pursuant to section 29(2) of the Youth Criminal Justice Act isrebutted by virtue of section 39(1) (

a) in that the accused are charged with a violent offence within the meaning of that term as defined bythe Supreme Court of Canada in R. v. C.D; R. v. C.D.K., 2005 SCC 78 , [2005] S.C.J. No. 79. 3. The application of one of the three accused jointly charged with assault causing bodily harm in this case, was adjourned prior to thecommencement of this hearing at the request of her counsel who was unavailable today. 4. The evidence of the Crown was given by Detective Constable F.K. of Toronto. He is one of the investigating officers in this casetogether with Officer C.C. 5. In

summary, the officer’s evidence is as follows: An anonymous visitor from the United States took a video of a vicious assault on a woman by three young women on a public sidewalk in the city of Toronto on Monday, November 28th 2011.He/she provided a link to that video to the police.The police viewed that video which revealed that 3 young women were involved in a verbal altercation with the femalecomplainant.

The altercation escalated into an assault by all three of the young women, causing significant bruising to various partsof the complainant’s body.Through the use of various social media internet sites, including Facebook and Twitter, the police identified the three youngfemales, and charged them with the offence. The media reports have caused outrage in the community at large, and, according tothe officer, it has been viewed by some 300,000 people, many of whom have written about the incident on the internet, expressingdisgust at this behaviour. 6.

Notwithstanding the objections of defence counsel, I ruled that in accordance with

section 518 of the Criminal Code, the video couldbe shown in court, and that the officer would be subject to cross examination on his evidence and the video, all of which occurred. 7. Officer F.K. told the court that while he and his partner were interviewing the complainant at her residence several days after theincident, she informed them that during the attack she told the perpetrators that she was pregnant, but they continued to punch and kickher in the head, the stomach and other parts of her body.

8. The attack as shown was serious in the extreme and very troubling. It was egregious, outrageous behaviour against the unsuspectingcomplainant who was unable to protect herself as she lay on the ground while being kicked and punched. These are allegations againstthe two accused before this court today. I would hope that those who are found to have committed this despicable act will be heldaccountable and appropriately punished if and when they are found guilty at trial. Why did this apparently unprovoked attack happen? InR. v.

Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474 at page 480, the Quebec Court of Appeal made the followingpoignant comment: "The more a crime is unexplained and unexplainable, the more worrisome bail becomes for society". 9. There are indeed triable issues relating, inter alia, to identification and the extent of the involvement of each individual accused. It isthis court’s task to determine whether appropriate plans of release can be crafted so as to reduce the concerns of the court to anacceptable level. 10.

I am cognizant of the accuseds’ Charter rights to the presumption of innocence, to reasonable bail, and their right not to be detainedwithout just cause. I am also fully aware of the principles governing the treatment of young people under the Youth Criminal Justice Act,which mandate the Courts to avoid detention in favour of reintegration and rehabilitation. 11. As the presiding Justice in this Youth Bail Court, my responsibility is to decide whether in all the circumstances, it is NECESSARY,not advisable or preferable, but NECESSARY, that these accused be held in pre-trial custody.

In other words, unless I find that pre-trialcustody is NECESSARY, a detention order is not justified. 12. It must be remembered that it is not my role to punish the accused, but rather to endeavour to craft an order with conditions whichwould reduce my concerns on all three grounds to a reasonably acceptable level. 13. With respect to the primary ground, the issue is whether the accused will come to court to face the charges if she is released. I acceptthat each of them has family and roots in the Greater Toronto Area.

Notwithstanding the outstanding charges of failing to appear in courton the part of B.A.H., I am satisfied that the primary ground concern can adequately be addressed with conditions of release. 14. The secondary ground is more difficult. The Crown’s case, at this early stage in the criminal proceedings appears to be rooted in astrong evidentiary foundation, but as the courts have held, strong cases can and do unravel.

The issue is whether in all the circumstancesthere is a substantial likelihood that if released, the accused would commit a further offence which would endanger the welfare andsafety of the community. 15. In regard to the tertiary ground, the Crown argues that in all the circumstances, including the four factors enumerated in section515(10)(

c) of the Criminal Code, a reasonable and knowledgeable member of the community would be shocked if the accused were to bereleased, and the administration of justice would thereby be undermined. In R. v. Hall (2002), 2002 SCC 64 , 167 C.C.C. (3d)449 (S.C.C.) at paragraph 467 Iacobucci J. made the following statement: “At the heart of a free and democratic society is the liberty of its subjects.

Liberty lost is never regained and can never be fullycompensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, mustplace the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.” 16. And at paragraph 494 of Hall, Iacobucci J. added: “Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values.

Although this may well costcourts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty”. 17. Although the community is outraged by the viciousness of this crime, I do not believe that if I were to release these two youngpersons on the release plans presented, the administration of justice would be brought into disrepute in the eyes of the reasonable andknowledgeable member of the community such as envisaged in Hall (supra). 18. All three grounds must be assessed in relation to the proposed plans of release. In R. v.

Knoblach, 2000 SCC 58 , 2000S.C.C. 58, Supreme Court of Canada Madam Justice Arbour, as she then was, in considering the question of dangerousness under aproposed conditional sentence, held that the court has to ask whether conditions can reasonably be crafted that would reduce the risk of are-offence to an acceptable level. In my view, this approach applies mutatis mutandis to bail matters where the court is considering theissue of detention or release. 19. The Plan of Release for B.A.H. Three proposed sureties are prepared to pledge a total of $8000.00.

All three of them appear to know her well, appeared to be forthrightand responsible people and they are prepared to supervise her together, while she resides with two of them under strict house arrest. 20. The Plan of Release for C.L. Two sureties were proposed: her mother and father, who will have her continue to live at home with them and some of her siblings understrict bail conditions. Although her father seemed less aware of C.L.’s outstanding charges and conditions of release, he came across asdid her mother, as concerned, responsible, and hard-working.

They are prepared to pledge a total of $8000.00 to secure C.L.’s release. 21. I am concerned that C.L. is facing a charge of assaulting someone in October of this year, and is currently on release on a Promise toAppear and an Undertaking. 22. In essence, the issue is whether in the face of this horrible crime which they are alleged to have committed in a public thoroughfare,there is a substantial likelihood that if released they would commit further criminal offences which would endanger the welfare andsafety of the community or interfere with the administration of justice.

23 . The Supreme Court of Canada has ruled that precise prediction of recidivism and future dangerousness is not what is constitutionally mandated. What is required is for the Court to determine whether the risk of future dangerousness can be reduced to an acceptable level by conditions of release on the plans of supervision being proposed. 24 . I am persuaded that the plans are adequate in all the circumstances, and I conclude that both accused have met their onuses, and that their pre-trial detention is not necessary. 25 . With respect to B.A.H., I cancel her previous release pursuant to

section 524 of the Criminal Code , and order a global release on a recognizance of $8000.00 with 3 named sureties: M. B. for $3000.00, A.S. for $2000.00 and S.M. for $3000.00, all without deposit.

The conditions of her release are as follows: • Reside at (address redacted) with M.B. and A.S., and be amenable to the routine and discipline of that address. • House Arrest: Not to be away from your place of residence at any time except in the company of any one of your sureties, or for medical emergencies, or while at the following: school, scheduled court appearances, scheduled appointments with counsel, scheduled counselling and/or community service programs. • Not to have any contact or communication, directly or indirectly with C.L., J.S., S.D. or L.R. except in the presence of counsel for the purpose of preparing a defence. • Not to have any contact or communication, directly or indirectly with C.Q. nor to be at any place where she lives, works, goes to school or happens to be as known to you. • Participate in counselling as directed by your sureties for anger management and family issues, and sign all authorizations and releases necessary to enable your sureties to monitor your attendance and progress.

Not to possess, until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance as defined by the Criminal Code . In addition, you are not to possess any imitation guns, air guns or pellet guns, or any knives outside of your residence except while eating or preparing food. • Keep the peace and be of good behaviour. 26 . With respect to C.L., I order her release on a recognizance of $8000.00, without deposit. R.A. and P.L. are the named sureties for $4000.00 each.

The conditions of her release are as follows: Reside at (address redacted) with your sureties, and be amenable to the routine and discipline of that address. • House Arrest: Not to be away from your place of residence at any time except in the company of either one of your sureties, or for medical emergencies, or while at the following: school, scheduled court appearances, scheduled appointments with counsel, scheduled counselling and/or community service programs. • Not to have any contact or communication, directly or indirectly with J.S. or B.A.H. except in the presence of counsel for the purpose of preparing a defence. • Not to have any contact or communication, directly or indirectly with C.Q. nor to be at any place where she lives, works, goes to school or happens to be as known to you. • Participate in counselling as directed by your sureties for anger management and family issues, and sign all authorizations and releases necessary to enable your sureties to monitor your attendance and progress.

Not to possess, until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance as defined by the Criminal Code . In addition, you are not to possess any imitation guns, air guns or pellet guns, or any knives outside of your residence except while eating or preparing food. • Keep the peace and be of good behaviour. P. H. Kowarsky Justice of the Peace