R. v. A.B., 2015 ONCJ 802

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; DATE: 2015·02·03 COURT FILE No.: Peterborough CITATION: R. v. A.B. , 2015 ONCJ 802 BETWEEN: HER MAJESTY THE QUEEN — AND — A.B., a young person Before Justice S. W. Konyer Heard on February 2, 2015

Reasons for Judgment released on February 3, 2015 Mr. F. Giardano ....................................................................................... counsel for the Crown Mr. R. O’Neill ................................................................................ counsel for the accused A.B. KONYER J.: [ 1 ] A.B., aged 16, faces two outstanding sets of charges. The first is an allegation of theft of approximately $10 worth of food items on September 10, 2014.

She was apprehended by a loss prevention officer after stealing these items from a Freshco store in Peterborough, charged by police and released on a Promise to Appear. On this matter she has made regular court appearances since that time. [ 2 ] She was next charged in January 2015 following two separate arsons that occurred in the city of Peterborough between January 1 st and 2 nd , 2015. She is charged along with three adult accused, M.R., who is said to have been her boyfriend at the time, and two females, Catherine Venator and Willow Wallace.

I am informed that the three adults have been arrested and remain in custody, though it is unknown whether they have had bail hearings. [ 3 ] The allegations surrounding these offences are serious. Late at night on January 1, 2015, emergency personnel responded to a deliberately set fire at an apartment building at 850 G[…] St., Peterborough. Subsequent investigation by police revealed that Willow Wallace had been a tenant at this building in the fall of 2014, but had been evicted.

From statements obtained from the various accused, it appears as though the group gained entry to the building on January 1 through the efforts of Ms. Wallace, and were smoking marijuana inside the building. Ms. Wallace apparently set a carpet on fire, and the four accused then fled the scene. The resulting fire caused some $80,000 in damage to the building.

Though no one was injured, it is obvious that this conduct put the lives and safety of the residents of that building at serious risk. [ 4 ] The following day, it is alleged that this same group was again involved in setting a fire at a non-residential address on Hunter St., also located in downtown Peterborough. Again, there was extensive property damage, but fortunately no injuries. Again, it appears on the evidence I have heard that Ms. Willow was the person responsible for the actual setting of the fire, though there is evidence that A.B. was present and may have encouraged her. [ 5 ] A.B. has a minor record.

She was convicted on August 1, 2014 of possession of stolen property and breach of an officer’s undertaking. She was sentenced to a period of probation, which carried a term requiring her to keep the peace and be of good behaviour. This order was in effect when she was charged with both the September theft and the January arsons. I am further informed that A.B.’s probation officer has expressed concerns relating to her use of drugs and failure to address mental health issues. [ 6 ] A.B. has a troubled family history.

She was apprehended from her parents at a young age, spent a number of years in group homes, and was eventually placed with her step-mother in Peterborough. Her step-mother has expressed concerns similar to those of her probation officer, and will not accept A.B. into her home at this time. [ 7 ] A.B. was ordered released by the Justice of the Peace who heard her bail hearing, with an appropriate surety. The Justice further directed that A.L., who gave evidence at the bail hearing and again before me, was not an appropriate surety.

A.B. seeks a review of that order pursuant to s. 33 of the Youth Criminal Justice Act . It is argued by her counsel that this youth has no other surety available, that her detention is not justified on any of the enumerated grounds, and that I ought to therefore release A.B. with A.L. acting as surety. [ 8 ] A.L. testified that she is a single mother living in an apartment with a young child. She has known the accused for about 8 months as a friend of her daughter. She is supported by ODSP as a result of an anxiety disorder.

She generally understands that she would be expected to supervise the accused if released, and has acted as a surety once previously, apparently without any difficulty.

She also owes several thousand dollars in outstanding HTA fines, and has no realistic ability to pay those fines at present. [ 9 ] The Crown argues that A.L. is not an appropriate surety given her slight knowledge of the accused, her lack of track record supervising this accused, and her apparent disregard for the law evidenced by her disregard for driving licence suspensions and her failure to comply with sentences imposed on her by a number of Provincial Offences Courts. I tend to share many of the same concerns as the Crown with respect to Ms.

Lee’s suitability as surety. [ 10 ] That is not the end of the matter, however, for as a youth special considerations apply to the question of judicial interim release. The Crown relies on the secondary grounds under s.29(2) (b)(ii) of the Youth Criminal Justice Act , arguing that A.B.’s detention is necessary in order to ensure the safety and protection of the public, which includes any substantial likelihood that she will, if released, commit a serious offence. The onus is on the Crown to establish that her detention is necessary to achieve this purpose, not simply that it is convenient or desirable.

Furthermore, the risk presented by the release of the accused must be substantial. Pre-trial release always involves some element of risk, yet in our system of justice release is the norm, not the exception. In the case of a youth, the presumption against pre-trial custody is enhanced.

A youth can only be detained if the substantial likelihood of re-offending relates to a “serious offence” not any offence; the court must be satisfied that the risk cannot be reduced to an acceptable level through the imposition of conditions; and the court is prohibited from detaining a young person as a substitute for appropriate child protection, mental health or other social measures. The

Preamble to the YCJA also emphasizes the need to reduce the “over-reliance on incarceration for non-violent young persons”. [ 11 ] Section 29(2) sets out the circumstances when detention may be ordered. A.B. does faces “serious offences” within the meaning of that section. The Crown argues that her detention is necessary for the protection of the public including the substantial

likelihood that if released she will commit a further serious offence. When considering whether the Crown has met its onus, I must besatisfied that no condition or combination of conditions that I could impose would reduce the risk posed by A.B. to an acceptable level inorder to detain her. [12] In R. v. Morales (SCC), [1992] 3 S.C.R. 711, the Supreme Court considered the meaning of public safety inthe context of the secondary grounds for detention pursuant to

section 515 of the Criminal Code. Although this case dealt with adultoffenders, the language of the relevant provisions closely mirror one another, and I find the following comments made by the majority atparagraph 39 to be instructive: Bail is denied only for those who pose a ‘substantial likelihood’ of committing an offence or interfering with the administration ofjustice, and only where this ‘substantial likelihood’ endangers the ‘protection or safety of the public’. Moreover, detention is justifiedonly where it is ‘necessary’ for public safety.

It is not justified where detention would merely be convenient or advantageous. [13] In A.B.’s case, she does not have a history of committing serious offences as defined in the YCJA. Mental health issues,negative peer associations and poor decision-making appear to lie at the root of the behaviour which brings her into conflict with thelaw. She clearly requires community support, and I cannot detain her as a substitute for appropriate social services. [14] Further, it is not clear that she would even be eligible for custody if convicted of the offences she is presently facing.

A“violent offence” within the meaning of

section 39 is one in which a young person “causes, attempts to cause or threatens to cause bodilyharm” according to the Supreme Court – see R. v. C.D., 2005 SCC 78 , [2005] S.C.J. No. 79, at para. 87.

A.B.’s conduct doesnot appear to fall within this definition. [15] Although it may be open to the Crown to argue, if A.B. is convicted of offences arising out of the arson charges, that thiscase falls within the exceptional category of cases for which custody may be imposed for non-violent offences pursuant to section 39(1)(c), in my view, on the evidence I have heard at this stage, this argument will be unlikely to succeed.

This troubled youth appears to havebeen a lesser participant in these matters, and her level of moral culpability, young age and personal circumstances will weigh against afinding that her case falls within the exceptional category.

Although not determinative of the issue since there is no longer apresumption against pre-trial detention under the YCJA where the youth is not custody eligible upon conviction, it is nevertheless afactor for my consideration when determining whether the Crown has met its onus under s.29. [16] Accordingly, in my view A.B.’s detention is not necessary in order to reduce the risk she may pose to the public to anacceptable level, particularly when I consider the level of risk in the context of conditions that can be imposed on her to govern herconduct while on release pending her trial.

In other words, I am not satisfied that it is necessary to detain her pending her trial in order toachieve a sufficient level of protection for the public from the risk that she would present if released into the community. The Justice ofthe Peace at her original bail hearing reached the same conclusion, but felt that a surety was required, presumably in order to reduce therisk to the public associated with A.B.’s release. In an ideal world, I would agree.

Yet this young person has spent the better part of amonth in custody on these charges already, with no realistic prospect that a suitable surety or other responsible person will becomeavailable to her. She is, for reasons I have already outlined, likely not custody eligible in my view on these charges. [17] Whether there is a surety or not, the ultimate question remains the same: has the Crown established that her detention isnecessary for the safety and protection of the public, bearing in mind the court’s ability to impose conditions of release.

Though it iseasier to conclude that the Crown has not met its onus when the court has the added comfort of a surety to supervise the accused, I stillreach the same conclusion in A.B.’s case even without a surety.

My conclusion is based on her lack of any significant record, herobvious need for social supports, and the fact that there appear to be very real and triable issues relating to her level of involvement inrelation to the outstanding arson charges. [18] Though it was not argued vigorously, I have also considered whether A.B.’s detention is necessary on the tertiary grounds inorder to maintain public confidence in the administration of justice.

The offences she is facing are serious but do not involve any injury,she is not likely in my view to receive a lengthy custodial sentence even if convicted, and the case against her does not appear to beoverwhelming from my understanding of the evidence. It appears as though the prosecution will depend on the admissibility ofstatements given by this young person to persons in authority, and there will be an onus on the Crown to establish that the statement wastaken in accordance with the provisions of the YCJA governing statements from young persons, which is far from a simple task.

Theprosecution may also depend, it appears, on the testimony of some or all of the adult accused, which is bound to raise issues ofcredibility and reliability. All of which to say that the prosecution of this young person raises very real and triable issues. A reasonableand informed member of the public, aware of the circumstances of this accused and the allegations against her and with an appreciationfor the presumption of innocence and the right to reasonable bail would not be unduly troubled by the prospect of A.B.’s release pendingher trial on these charges.

In all of these circumstances, the Crown has failed to convince me that A.B.’s detention is warranted on thetertiary grounds. [19] Therefore, A.B., I will release you on your own recognizance, on the following conditions: • That you post a $200 bond • That you keep the peace and be of good behaviour • That you reside at 903 C[…] Road, Peterborough, or at such other address as may be approved of by your probation officer • That you report to your probation officer within 2 working days of your release, and thereafter as required by your probationofficer • That you have no communication with Willow Wallace, Catherine Venator or M.R.

• That you not attend at 850 G[…] St or 297 Hunter St, Peterborough • That you not attend at any Freshco store • That you not purchase, possess or consume alcohol or any substance listed in the schedules to the Controlled Drugs and Substances Act • That you be within your place of residence between the hours of 10 pm and 6 am daily Released: February 3, 2015 Signed: “Justice S. W. Konyer”