R. v. T.(J.), 2013 ONCJ 397

WARNING The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. DATE: 2013-07-15 Citation: R. v. T.(J.) , 2013 ONCJ 397 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — J. T. a young person Before Justice M.L. Cohen Ruling Released: July 15, 2013 Amended: July 22, 2016 (paras 16, 30, 31) Mr. S. Graham ........................................................................................................ for the Crown Ms. J. De Filippis ........................................................................... counsel for the accused J. T. Cohen, J.:

[ 1 ] This is my ruling on an application for judicial interim release under

section 33 of the Youth Criminal Justice Act . The accused, J.T., has been ordered detained by a Justice of the Peace on a number of charges and now seeks an order for his release from detention in this court. The Crown and the defence have agreed that J.T. should be released upon his entering into a recognizance with a named surety and specified conditions. For the reasons which follow, I find that, notwithstanding the agreement for release, the Crown has failed to meet its onus under section 29(3) of the Act, and I am dismissing the application .

In particular, as I shall detail below, I do not find the surety suitable, and I am not satisfied that the proposed conditions offer adequate protection to the public from the risk that the young person might otherwise present. [ 2 ] I begin with the history of this matter. [ 3 ] J.T. was charged on February 14, 2013, with a number of gun and drug-related offences. On the following day he was released by a justice of the peace on a surety bail with conditions. His mother was named as surety.

On June 14, 2013, while at large on his recognizance, J.T. was charged with further drug offences, as well as with several charges of breaching his recognizance and a probation order. The Crown brought a

section 524 application before a Justice of the Peace, which was granted, and J.T. was ordered detained by the Justice. He has remained in custody since that date. [ 4 ] On July 3, 2013, when the youth first came before me, the Crown advised the Court that he and defence counsel had agreed that J.T. would be released on all charges upon his entering into a recognizance with specified conditions and a named surety.

While the surety on J.T.’s initial recognizance had been had been his mother, the Crown and defence now agreed that the surety on the new release would be a senior pastor of a church in Toronto. [ 5 ] The proposed conditions were that J.T. must reside with his mother, and be in his residence at all times, except when in the presence of his mother, father, the pastor or two other named individuals, and when travelling to, from or while in court, school, counselling as directed by his surety, and probation or probation directed appointments.

He would also be required to attend counselling as directed by the surety in consultation with the African Canadian Youth Justice program, and not be absent unless with permission of his surety. He was to sign consents in favour of the surety so the surety can monitor his school, community counselling attendance, and progress. He was not to possess any weapons as defined in the Criminal Code or controlled drugs, as defined in the Controlled Drugs and Substances Act.

Finally, he would be required to attend the Early Release Support Program, which is a structured community-based program offering support for young people awaiting trial, and their families, with the goal of preventing the youth from offending while on release. This program is run through Central Toronto Youth Services and is well-known to the court. The Early Release Support Program does not supervise the youth in the community, and does not offer itself as a surety. [ 6 ] Before addressing the suitability of the consent, I asked counsel to advise the Court of the allegations underlying the various charges.

The Crown advised the Court that the accused, who is 16 years of age, resides with his mother and older brother, and that he and the brother sleep in the basement area of the residence. On February 14, 2013, the police executed a search warrant at the home. According to the allegations, the accused attempted to flee. The Crown alleges that, in the basement area of the home, the police located a 9 mm Glock handgun secreted in the inside panel of the flywheel of an exercise bicycle. The firearm was “in the ready position,” meaning it was loaded and ready to fire.

There were 7 rounds of ammunition and one bullet in the chamber. In addition, it is alleged that the police located a second gun with 6 rounds of 45 calibre ammunition in a vent duct on the floor. This gun was described as a small calibre handgun with the slide mechanism missing. At the time the weapons were located the accused was bound by a probation order prohibiting him from possessing any weapons. [ 7 ] J.T. was also charged on February 14, 2013, with being in possession of marihuana for the purposes of trafficking, and with possession of marihuana in an amount exceeding 30 grams.

The Crown provided no information to the Court about the allegations giving rise to these charges. [ 8 ] J.T. was held for a bail hearing on the gun and drug charges, and then released on a recognizance on February 20, 2103. [ 9 ] The second set of charges arose in June. It is alleged that on June 1, 2013, J.T. was observed by the police in a parking lot outside of his residence. He was not arrested at that time, however five days later, on June 6, 2013, it is alleged that he was again observed by police to be outside of his residence, without his surety, contrary to the conditions of his release.

J.T. was arrested and the police located a quantity of marihuana in a gym bag, as well as a small amount of marihuana on his person. He was charged with several counts of breaching his recognizance and probation, as well as with possession of marihuana, and possession of marihuana for the purposes of trafficking. [ 10 ] Having heard the allegations, I advised both counsel that I would have to hear from the proposed surety, and that we were embarking on a full

section 33 bail hearing. Neither counsel appeared to anticipate a hearing in light of their agreement, but neither sought an adjournment. The surety testified, and, at the conclusion of his testimony, I advised defence counsel I wished to hear from J.T.’s mother. The bail hearing did not conclude and was adjourned to another date. [ 11 ] On the return date, the defence counsel advised the court that she would not be calling the mother, or any other witnesses.

She submitted that the Court was bound by the consent entered into between crown and defence, and had no discretion to make a different order than the one proposed. The Crown did not support this submission. Before dealing with the substantive issues in this case, I will address defence counsel’s argument on this issue. [ 12 ] I begin by pointing out that under

section 33 of the Youth Criminal Justice Act , an application for release after detention proceeds as an original application. The court does not have before it the transcript of the evidence at the earlier bail proceedings or the reasons for the ruling of the justice of the peace. In these circumstances, and in the absence of any evidence, it is difficult to see how a court could rule intelligibly on a

section 33 application. Clearly, the court cannot make a judicial determination unless it is advised of the factual allegations underlying the charges. Having heard the allegations, no matter how serious, is the court then expected to ignore them, and effectively rubber stamp the decision of the crown and the defence? Indeed, if that is the expectation, why does the Act provide for a hearing before a Youth Justice Court at all? [ 13 ] Defence counsel relied for the proposition that the court is bound by the agreement of counsel, on the case of R. v.

Findley [2004] O.J. No. 3263 , a decision of the Superior Court of Justice. In that case a Justice of the Peace had imposed a conditional sentence at the conclusion of a bail hearing, obviously a manifest error. The Court was conducting a review of a decision of the Justice of the Peace. The Court was not, I would point out, conducting a bail de novo . Unsurprisingly, the Court granted the application. In the course of its reasons, the Court discussed the issue of joint submissions on bail hearings, in my view by way of obiter dicta . [ 14 ] I have reviewed this case, and the authorities cited therein.

Most of the authorities cited deal with joint submissions on sentence rather than judicial interim release proceedings. One decision cited in Findley did arise in a bail proceeding, not under the Youth Criminal Justice Act , and in entirely different circumstances than the case before me.

In my respectful view, Findley is not authoritative on the argument counsel advances, and does not assist. [ 15 ] I have been offered no other authority for the proposition that an analogy can be reasonably drawn between the role of the court in relation to joint submissions on sentence, and the role of the court when presented with a joint position on bail. A joint submission on sentence is presented to the court after a guilty plea. The accused has given up his right to trial, based on an agreement between Crown and defence about the sentence that will be sought.

The rule requiring deference to plea agreements arises from concerns about the effect on the administration of justice if plea agreements are not given serious consideration by the Court. There is substantial jurisprudence on this issue. However, even in the case of joint sentencing submissions, the jurisprudence is clear that the Court retains its discretion to order a different sentence than the one agreed upon, based on the record before it, where the agreement offends the proper administration of justice or the public interest.

Evidence for the proposition that the Court retains a discretion to depart from a plea agreement may be found as well in section 606(1)(1.1)(b)(iii) of the Criminal Code , which requires that, before accepting a plea, the court must be satisfied that the accused understands “that the court is not bound by any agreement made between the accused and the prosecutor.” [ 16 ] Furthermore, in a bail hearing, the constellation of factors is entirely different than in a sentence hearing.

The matter is at an early stage, many of the underlying facts are unknown, the accused is presumed innocent, and the accused has a constitutional right to reasonable bail. While the Court will consider a consent, and may indeed make an order in the terms of the proposed consent, ultimately the discretion of the court on such issues cannot be fettered by the agreement of counsel.

Section 29 of the Act invests the Youth Court with the discretion, and the responsibility, to independently evaluate the evidence and come to its own conclusions about whether the release plan addresses the risk established at the hearing.

If the Court is expected to merely follow the agreement of counsel, why is the matter before a justice at all? [ 17 ] Finally, even if it is arguable that all joint submissions are entitled to some consideration, I will note that in this case I did give consideration to the plan presented, I did entertain argument on the issue of the effect of the joint agreement, I did make it clear to both counsel that I was proceeding with a bail hearing, and I did afford counsel the opportunity to call witnesses and make submissions on the release proposed. [ 18 ] I turn then to the evidence before the court. [ 19 ] The Crown provided the Court with a

summary of the allegations underlying the charges, and called no evidence on the hearing. The defence called the proposed surety. The witness testified that he is a senior pastor at a Church in Toronto, and in that capacity also heads up a foundation that runs day camps, distributes flowers in various communities, and runs a “Cool Tools” program which teaches the participants how to use tools as a means of attracting them to a career in the trades. He stated that police officers from 23 Division participate in this latter program. The witness testified that there were 500 people in this program last summer.

Although, the witness stated that this program was developed for teenagers and young adults, I was unable to discern from his testimony how many youth are actually participating in the program. [ 20 ] The witness testified that he has been a surety twenty-four times. He did not indicate whether any of the individuals he assisted were young persons. It appears he uses his role as surety to engage accused persons in the foundation’s programs, which he believes diverts them from negative behaviours and associates.

The witness stated that he prefers conditions in a recognizance that make attendance at his programs compulsory, and, indeed, the proffered conditions would require J.T. to “attend counselling as directed by the surety in consultation with the African Canadian Youth Justice program”. The surety testified that if J.T. did not participate, he would pull his bail. The witness stated that only two of the twenty-four people he has assisted have subsequently breached their recognizances.

He stated: “We takes breaches seriously, we take conditions seriously…we don’t like to lose money, plus we like to uphold the conditions of the law”. [ 21 ] The witness stated that as surety for J.T., his role is to work with the mother to ensure J.T. complies with his “house arrest,” and only leaves the home to go to approved activities. He described the activities he would provide: He or his staff would meet with J.T. three times per week for counselling, and J.T. would meet with his program leader twice per week. J.T. would also be required to attend a Christian church service every Sunday morning.

The witness or his staff would drop in on J.T.’s house once or twice a week, and J.T. would work as a volunteer in the “Cool Tools” program, for example assisting with transporting tools or deliveries. He stated that on many days J.T. would be with him, or his staff, “under the team’s supervision,” for eight hours, and that through these contacts J.T. would develop relationships which would foster a change in direction.

He also indicated he would drop in on his house –home chaplaincy- once or twice per week. [ 22 ] I found it difficult to assess the witness’s personal relationship with J.T.’s family because he persistently used the pronoun “we” when discussing his contacts with them. For example, he stated that he knew the mother because she picked up flowers and “We started in once a week” with friendship visits in May, 2012. He stated that “We get to know everyone in the household and their friends”. [ 23 ] Whatever his knowledge of the mother, it was clear that the witness did not get to know J.T..

Judging from the witness’s testimony, J.T. showed no interest in his programs. The witness stated that “We encourage young people to come, but he did not come.” The witness acknowledged that he did not have a “deep acquaintance, with J.T., mostly a hello.” He stated that he had “renewed his acquaintance with family”, but before he could go further, the raid occurred and J.T. was arrested. That event, however, occurred in February, and the accused was released a few days after his arrest, so the opportunity was there, and apparently not pursued, for the

witness to try to deepen his relationship with J.T.. [ 24 ] It is a significant deficiency that the witness did not discuss his release plan with J.T. He testified that he had not had a chance to see J.T. directly, but he stated that he could see that J.T. was “nodding his affirmation” while he was testifying, which he thought was important. It was also unclear to me whether the witness had discussed the release plan with J.T.’s mother.

When asked by defence counsel whether he had had a chance to communicate his plan of supervision to the mother, he did not answer the question, but began to discuss the plan once again. When the question was put to him again at a later point in the examination, he stated “This has been communicated to the mother. I have given her a list and the lawyer and I am assured this is what he wants.” [ 25 ] The plan of release proposes that J.T. reside with his mother. He would only be permitted to leave the residence for certain named activities.

Although I advised counsel that I would like to hear from the mother, and indeed that it was relevant and important that I hear from her, she was not called as a witness. I was later told in submissions by the Crown that the mother was not in the country when the search warrant was executed on the youth’s home, and that the mother is herself facing criminal charges. J.T. also did not testify at the hearing. It would have been very helpful to hear from him. [ 26 ] In the result I did not hear from any witness who could attest to J.T.’s ability or willingness to abide by the proposed conditions.

Indeed, the only evidence I received about the youth who is at the center of this hearing, other than what is found in the allegations before the court, is that he is 16 years of age, registered for summer school, was found guilty of robbery in February, 2012, and was placed on probation. He is still on probation. Other than these facts, I know nothing about him. [ 27 ] At this point, for convenience, I set out

section 29 of the Youth Criminal Justice Act , which establishes the criteria for the Court’s decision in this case. Justification for detention in custody

(2) A youth justice court judge or a justice may order that a young person be detained in custody only if (

a) the young person has been charged with (

i) a serious offence, or (ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt; (

b) the judge or justice is satisfied, on a balance of probabilities, (

i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so, (ii) 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, or (iii)in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (

i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in

section 3 and to all the circumstances, including (

A) the apparent strength of the prosecution’s case, (

B) the gravity of the offence, (

C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (

D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and (

c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph ( b ), (

i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so, (ii) offer adequate protection to the public from the risk that the young person might otherwise present, or (iii) maintain confidence in the administration of justice. [ 28 ] As may be seen above, Subsection 29(2) (a), (b), and (

c) are conjunctive. A youth has the right not to be detained unless the offence is a serious offence or, if it is other than a serious offence, if the young person has a history that indicates a pattern of either outstanding charges or findings of guilt (section 29(2)(a)) , unless a justification for detention has been established (Section 29(2)(b)), and unless the court is satisfied that no condition or combination of conditions would address, to the requisite standard, the risk established to justify detention (section 29(2)(c)). [ 29 ] I wish to begin by addressing the question of onus in relation to conditions for release of an accused. Sub-section 29

(3) provides that The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the AttorneyGeneral. [30] At the risk of repeating what I have already said, section 29 (2) provides that detention can only be ordered if theconditions under section 29(2)(

a) are satisfied. If those conditions are not satisfied, or if there is no justification for detention, there willbe no conditions. The youth will be released on his own undertaking without conditions. Once a justification for detention is established,the youth can still only be detained if the court is satisfied that no condition or combination of conditions would address the riskestablished to justify detention to the standard specified in sub-section (c). [31] In the case at bar, the Crown has established that the youth has been charged with a serious offence.

The Crown in thiscase seeks the release of the accused youth under conditions. If the Crown seeks conditions, he must satisfy the court that a justificationfor detention exists. Conditions can only be ordered in a relation to a specific justification for detention 29(2)(b). [32] In Regina v. Yarema, [1989] O.J. No. 1949 (Ont. S.C.), Mr. Justice Watt, dealing with detention and release under theCriminal Code, states that “ the onus of showing cause rests upon the prosecutor who seeks the accused's detention, or release upon amore stringent basis than an undertaking without conditions”.

In my view, the onus similarly remains on the Crown under section 29(2)(

c) of the Youth Criminal Justice Act, to justify to justify detention, or to justify conditions of release. I come to this conclusion for thefollowing reasons: [33] Firstly, Section 29(3) is broadly worded, and refers to “the matters referred to in subsection (2).” Conditions of release aredealt with in subsection 2(iii), and are therefore “matters referred to in subsection (2)”. Secondly, an

interpretation placing the onus onthe Crown is consistent with the conjunctive nature of the three sub-sections addressing detention. There is no wording to suggest thatthe onus shifts to the accused under subsection (c). Thirdly, maintaining the onus on the Crown is consistent with Regina v D.B, whichheld that shifting an onus of proof to a youth as provided under certain other sections of the Act was unconstitutional.

Fourthly, it isconsistent with the fact that, in the recent amendments, Parliament did not choose to introduce into the Youth Criminal Justice Act thereverse onus provisions which appear in section 515(6) of the Criminal Code. Finally, it is consistent with the thrust of section 29(2), andwith the principle of restraint in the Act, which seeks to limit the Court from interfering with the liberty of the young person unlessjustified under the section. Accordingly, having established the risk specified in section 29(2) (

a) and (b), if the Crown and defence agreeon condition of release, as in the case at bar, the onus nonetheless remains on the Crown to satisfy the court that the proposed conditionsof release would address the established risk. [34] I would only add that, pursuant to

section 31.2 of the Act, if the court intends to order the detention of the young person, itmust first inquire into the possibility of placing the young person in the care of a responsible person. In this regard I will merely indicatethat only one surety has appeared before the Court, and, as I have indicated, I did not find the surety suitable. Designating him as aresponsible person would not address the concerns I have outlined below. [35] In his submissions, the Crown relies on section 29(2) (b)(ii).

Although the Crown did advert to the strength of thecrown’s case, which is a factor specified in 29(2) (b) (iii) (A.), but not 29(2)(b)(ii), he did not otherwise argue that the accused should bedetained to maintain confidence in the administration of justice, nor did he argue that there was any concern that the youth would notappear in court as required. [36] In addressing section 29(2) (b) (ii), I have considered the fact that J.T. is presumed innocent of the charges against him.He is entitled to reasonable bail under

section 11(

e) of the Charter. He has no history of failing to appear in court, there are no“exceptional circumstances that warrant detention,” nor is detention necessary to maintain public confidence in the administration ofjustice. The fact that the recent charges do not allege further involvement with firearms is positive. Furthermore, the Crown submits thatthe case for the Crown is weak, since the guns were found in a sleeping area shared by J.T. and his older brother. [37] Despite the foregoing, a significant concern arises in this case from the nature of the charges. J.T. is charged withpossessing two handguns.

One of the guns was loaded and ready to fire. He is also charged with possession of drugs for the purposes oftrafficking on the same date. The combination of guns and drugs increases the risk. The Ontario Court of Appeal has held that it is not anerror for a court to find a “substantial likelihood” that an applicant would re-offend based on the circumstances of an offence: R vGulyas, 2013 ONCA 68 , [2013] O.J. No. 417. As well, J.T. was found guilty of robbery, and was on probation at the time ofthe charges before the court. The probation order prohibited him from possessing any weapons.

Since his arrest he has twice beencharged with breaching his recognizance, and his probation, and he has again been charged with possession of marihuana for the purposeof trafficking. All of these circumstances militate in favour of a finding that there is a substantial likelihood that J.T. will, if released fromcustody, commit a serious offence as defined by the Act. [38] I have considered the effect of the Crown’s suggestion that there are weaknesses in the Crown’s case. I note that theCrown asserted, nonetheless, that there remains a reasonable prospect of conviction.

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 factorshould not play a significant role in my determination. In addition, I note the comments of Weagant, J., in R. v. A.J. (unreported: 2007-08-16) (Justice B. Weagant, Court File No. Toronto Y271274) When analyzing the secondary ground…the strength of the crown’s case does not play as central a role.

The secondary ground is moreabout the offender and whether the offender’s potential behaviour in the community can be predicted with the required certainty givenall the evidence. [39] In the result, I am satisfied on a balance of probabilities that J.T.’s detention is necessary for the protection or safety ofthe public, having regard to all the circumstances, including a substantial likelihood that he will, if released from custody, commit aserious offence. His detention is justified under section 29(2)(b)(ii) of the Act.

[ 40 ] I turn then to section 29(2) (c). [ 41 ] Prior to delivering this ruling I advised Crown and defence counsel, that I was not satisfied by the proposed surety, or the proposed conditions of release. I offered to adjourn the hearing for a further appearance, at which time better evidence, and a different plan, could be put before the Court. This offer was declined by defence counsel.

I therefore turn my attention to whether I am 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. [ 42 ] The onus is on the Crown to satisfy the Court that the named surety and the conditions of release will offer adequate protection to the public from the risk that the young person would otherwise present.

In this case, although I would be open to ordering the release of the accused were I presented with a better plan, I am not so satisfied. [ 43 ] Of particular concern is the fact that the plan requires J.T. to live with his mother. The guns were located in this home. The mother was out of the country when the warrant was executed. It is not clear who, if anyone, was supervising J.T. in the home at that time. I do not know what the situation is today. The brother, who is an adult, has been charged with these same offences. I am advised that the mother is herself facing criminal charges.

The mother has not testified, so I am unable to assess the quality of her relationship with J.T., and her ability to supervise him in the home, irrespective of the fact that she would not be a surety. I do not know whether the brother is in or out of detention, nor, if he has been released, nor do I know what conditions bind him if he has been released. [ 44 ] Other aspects of the plan also raise a concern. I do not know who the two other individuals named in the proposed order are, or why they should be entrusted with the supervision of J.T. when he is out of the home.

The father has not attended court, so far as I am aware, and he did not testify on the hearing. Furthermore, I do not know the conditions of J.T.’s residence, and whether, subject to exceptions, a condition requiring that he be in his residence at all times, can reasonably be sustained by him. I do not know what kind of counselling is recommended or why. [ 45 ] I turn to the issue of the proposed surety. The evidence is that this individual has never engaged at all with the young person other than to say hello.

He did not even endeavour to talk to J.T. prior to testifying, to ascertain J.T.’s interest in his program, and his suitability for it. I am not even persuaded the witness knows the mother well. [ 46 ] While the witness knows about the programs his foundation sponsors, I have little reason to believe that he knows anything about this family. Given this finding, I think it is important to point out that J.T. is not an abstract entity. He is an individual with a character and a personality. He has a family. He has a background. He comes from a neighbourhood, from a place. Who are his friends? Does he go to school?

How does he do in school? Does he have learning issues, psychological issues? Is he healthy? How does he get along with his mother? His father? Who has helped him in his life? Who does he love? Who loves him? Who does he respect? What is his life like? What is he like? [ 47 ] The surety did not speak to any of these questions. He appeared to have no knowledge of the young person he proposes to assist. Assuming he has good intentions, how can he possibly know what this particular youth needs, what he wants, and what kind of plan he is likely to accept?

If he knows nothing about this youth, why would the court be willing to accept him as a suitable surety? [ 48 ] The witness pointed to the fact that he has acted as a surety 24 times. This was presented to the court as an advantage or an achievement. I do not see it that way. I see his acting as a surety on so many occasions as constituting a kind of business activity. Indeed, listening to his testimony I had the impression I was hearing an executive offering the services of his corporation to monitor and engage the accused.

The witness repeatedly stated that the accused would be supervised by his “staff “and his “team.” As I have indicated, throughout his testimony he spoke in the third person, and I was often unable to discern whether he was talking about himself, or people who worked for him. [ 49 ] In The Law of Bail in Canada , Justice Trotter states that “The surety is an individual who is usually well-known to the accused … The essence of the relationship is social in nature, founded upon kinship or friendship. It is not a business transaction.

This is to be contrasted with the American system archetype – the professional bail bondsman. 7.1 [ 50 ] I am not suggesting the proposed surety is a bail bondsman motivated by financial gain. Nor do I have any reason to believe that he is other than well motivated. Nor that the programs he has described are unworthy. Indeed, should J.T. be released, he may be willing to participate in some of them.

But the Court must exercise extreme caution when asked to commit a young person to the supervision of an individual, from a private organization, with whom the young person seems to have little acquaintance, and no affective ties. The possibility a youth may participate in a program does not mean that, ipso facto , the organizer of the program will be found to be a suitable surety. [ 51 ] In Regina v. D.B. , Justice Abella explains that Canada has always had a separate legal system for young persons, because young people “have heightened vulnerability, less maturity and a reduced capacity for moral judgment”.

It is this understanding that lies at the heart of the youth justice system. In the bail context, this means that more may be demanded of a surety for an accused youth, than for an adult. In assessing a proposed surety, the Youth Court takes into account the special needs of young people, their dependence, their immaturity, and the risks posed by their frequent resistance to authority.

Thus the court is concerned, not only with the character of the surety, but with the quality of the surety’s relationship with the young person - the length of time the surety has known and interacted with the young person, whether the surety has a reasonably intimate knowledge of the young person’s abilities, his interests, and needs, and whether the surety has the ability to communicate and engage with the young person. Does the surety have a well-founded opinion about the likelihood the youth will engage with the supports and services offered?

By these criteria, the proposed surety in this case is not suitable. To quote Justice Trotter, the proposed surety in this case presented as “an impersonal professional” - not as a friend or relative, with a sincere and demonstrated interest in the well being of this youth. [ 52 ] It is possible that the surety in this case was presented to the court because there is no friend or family member who can offer to act as surety for J.T. It may be there is no one available to supervise him other than his mother. If this is the case, J.T. is

especially vulnerable. [ 53 ] J.T. is not the only youth who finds himself in this position when seeking release from detention. There are many youth in this court who are without family and without resources. The Youth Criminal Justice Act prohibits the court from detaining young persons in custody, prior to being sentenced, as a substitute for appropriate child protection, mental health or other social measures. Yet many young people are detained precisely because no social measures exist to address the circumstances that leave them without the ability to present a reasonable release plan to the Court.

At the age of 16, although J.T. is a young person as defined by the Act , he is too old to be assisted by the Children’s Aid Society. With several charges of breaching court orders, it may be that the bail program would also refuse to supervise him. (I was not told whether this avenue had been explored.) This court cannot, by itself solve that problem. This court cannot find a surety for this youth, nor can it devise a realistic set of conditions responsive to the difficulties J.T. evidently has in his home, and the established risk.

I am hopeful that, with further assistance from his counsel, a different plan can be devised and placed before a Court. I am not satisfied today, on a balance of probabilities, that the proposed conditions of release would offer adequate protection to the public from the risk that the young person might otherwise present, I am dismissing this application. J.T. will remain in detention. Released: July 15, 2013 Amended: July 22, 2013 ______________________ Justice Marion Cohen