R. v. K.M., 2019 ONCJ 428

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 CITATION: R. v. K.M. , 2019 ONCJ 428 DATE: 2019 06 18 COURT FILE No.: Newmarket 19-Y146052,19-Y159132 BETWEEN: HER MAJESTY THE QUEEN — AND — K.M., a young person Before Justice Joseph F Kenkel Heard on 18 June, 2019 Delivered on 18 June, 2019

Ms. Jennifer Halajian.......................................................................... counsel for the Crown Mr. Ayaz Mehdi ................................................................... counsel for the defendant K.M. KENKEL J.: Introduction [ 1 ] K.M. applies to vary terms of an undertaking entered into on release from the police station on the 6 th of June, 2019. [ 2 ] K.M. is charged with Sexual Assault with a Weapon s 272(1)(

a) and four counts of Assault with a Weapon s 267(

a) of the Criminal Code . Jurisdiction to Review an Undertaking [ 3 ] This court has jurisdiction to review terms of an undertaking prior to the designated first appearance in court and prior to an information being sworn – R v ADM 2017 NSPC 77 . Section 499(3) of the Criminal Code incorporated into these proceedings by virtue of s 28 of the Youth Criminal Justice Act (YCJA) SC 2002 c 1 provides that a person subject to an undertaking may, at any time before or at the first appearance, apply for review.

One of the reasons why courts act at this stage is that the undertaking and promise to appear are separate documents. While the enforceability of a Promise to Appear depends upon laying an Information in accordance with the provisions of the Criminal Code , the terms of an undertaking crystalize immediately upon release and remain in force until the completion of the trial – R v Oliveira 2009 ONCA 219 .

Timely access to review is particularly important in the youth court context. [ 4 ] In one case it was argued that a person subject to an undertaking is in a “legal limbo” until the Information is brought before the court. The defence submitted the person cannot challenge unfair or even illegal conditions before that point. Note that that argument was made as an example of prejudice in a Morin era s 11(

b) application – R v Ramsaroop 2009 ONCJ 406 at para 63 . Having considered the very detailed review of the legislative history of s 499(3) and the purpose of that provision as set out in R v ADM, I agree with the finding in that case that the

section permits review of an undertaking before first appearance and before an Information is sworn. In my view, that approach is consistent with the provisions of s 499 and consistent with one of the central reasons typically given for not permitting collateral attacks on judicial orders that were breached – that the person bound has “effectively an immediate opportunity” to dispute Form 11.1 conditions before the courts. See: R v JS [2007] OJ No 4049 (SCJ) . [ 5 ] Judicial review of undertaking conditions is not limited to an application on or before the first appearance.

An application may be made on any subsequent appearance – R v Paul 2007 ONCJ 615 . The Superior Court of Justice does not have jurisdiction to review terms of an undertaking release by an officer – R v Petrovic [2006] OJ No 726 (SCJ) .

The Terms at Issue [ 6 ] The undertaking contains three conditions: 1) That K.M. not communicate directly or indirectly with the 8 persons named; 2) That K.M. refrain from attending at the victim’s place of residence, work, worship or place of education; 3) Notify the officer in charge #2070 of any change of address or education. [ 7 ] The applicant submits that the restriction on contact with the witnesses who are in the same grade as the accused youth are unnecessary.

Such conditions may prevent K.M. from attending his grade 8 graduation, continuing positive friendships and continuing to play for his hockey team. [ 8 ] The Crown submits that the terms should be varied to specify the names of the two victims. The Crown also submits that the undertaking should specify that school property includes the playground area and should include an adjacent park area. The Crown concedes that an exception to the no-contact term should be made for the purpose of education in September when the young person and certain witnesses will be starting high school.

While the Crown agrees the no-contact provision with respect to the witnesses is not necessary for public safety, the Crown submits that the term is still needed to ensure the preservation of evidence and is not punitive. If the undertaking is varied, the Crown requests that a “no weapons” term be added. Review [ 9 ] A release by undertaking at the station is unusual for these offences but in my view it was proper in the circumstances of this case.

The terms imposed were necessary for public safety in relation to the complainants and were reasonably thought necessary to preserve evidence in relation to the other witnesses. There’s no evidence of any improper purpose in setting the terms of release. [ 10 ] In considering this application to replace that undertaking, I note the special context of a youth proceeding. The principles set out in s 3 of the YCJA apply. In this case the witnesses who are in the same grade as the accused young person have all given statements to the police. The two alleged victims are both a year younger and in grade 7.

The older boys are leaving the school in a week while the complainants remain for another year. Many of the persons involved including K.M. live close to the school.

[ 11 ] I note that K.M. was suspended by the school for 9 days in relation to the incidents that led to these charges.

He returned to the school for a few weeks without incident prior to his arrest. [ 12 ] Considering all of the circumstances and applying the provisions of the YCJA in this context I find the applicant has shown that the undertaking issued by the officer in charge should be replaced by an undertaking issued by this court under s 515 of the Criminal Code on the following conditions: • Keep the peace and be of good behaviour • Attend court as required • Not have any contact, directly or indirectly with […Name 1…] and [… Name 2…] • Not attend at any known place of residence, education, work or worship of […Name 1…] and [… Name 2…] except once in the company of a parent for your graduation ceremony. • Not attend on the property of […] School including the playground area at that school except once in the company of a parent for your graduation ceremony. • Not possess any weapons as defined by the Criminal Code • Notify the officer in charge #2070 of any change of address or place of education 72 hours prior to such change Delivered: June 18, 2019 Justice Joseph F.

Kenkel