2022 QCCQ 10029, 2022 QCCQ 10029

LSJPA — 2229 2022 QCCQ 10029 CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] COURT OF QUÉBEC N°: 525-03-070303-219 DATE : January 17, 2022 ______________________________________________________________________ PRESIDED BY : HONOURABLE ANNIE SAVARD, J.C.Q. ______________________________________________________________________ THE QUEEN v.

X ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Warning : No person shall publish the name of a young person or a child or any information that may identify him as having been dealt with under the Youth Criminal Justice Act, or as being a victim or witness in connection with an offence alleged to have been committed by a young person, except by judicial order.

Every person who contravenes these dispositions is liable to prosecution [sections 110 (1), 111 (1) and 138 YCJA]. [ 1 ] The Court reminds every one of the order issued on January 12, whereby the evidence taken, the information given or the representations made and the reasons given in court shall not be published in any document or broadcast or transmitted in any way before the trial has ended [1] . [ 2 ] The accused, X , is a sixteen year old adolescent.

He is charged with attempt to commit murder on the person of A , assault on the person of A , possession of a weapon for the purpose of committing an offence and carrying a concealed weapon, specifically a knife. The events occurred on December 9, 2021. [ 3 ] The prosecution opposes the adolescent’s pre-trial release on all three grounds as provided for at

section 29 of the Youth Criminal Justice Act . The prosecutor submits essentially that the protection of society requires the detention of the adolescent. The prosecution further suggests that the accused may fail to present himself to court considering the evidence of his defiance of authority figures both at home and at school. Alternatively, the prosecution argues that there are exceptional circumstances justifying the detention of the adolescent in order to maintain confidence in the administration of justice. [ 4 ] The defence submits that the prosecution has failed to meet its burden on all grounds.

Should the court nevertheless conclude that the detention of the adolescent is necessary on either of the grounds submitted by the prosecution, the defence argues that the risk can be managed by strict conditions of release. Furthermore, should the Court decide that no conditions or combination of conditions of release would be sufficient to offer adequate protection to the public or to maintain confidence in the administration of justice, the defence proposes that the adolescent be entrusted to a responsible person instead of being detained in custody.

More specifically, the defence proposes the mother to act as a responsible person for the adolescent. [ 5 ] The issues can be summarized as follows: - Has the prosecution established, in accordance with

section 29 of the YCJA, that the detention of the adolescent is necessary? - If so, is the mother willing and able of being entrusted with the accused under

section 31 of the YCJA?

[ 6 ] At the stage of the bail hearing, the burden of proof rests with the prosecution. [ 7 ] The assessment of the criteria listed at

section 29 as well as the application of all relevant principles must take into consideration the general philosophy of the law confirming the intention of the legislator to limit the use of detention to situations where necessity is demonstrated. THE CONDITIONS OF

SECTION 29 OF THE YCJA [ 8 ]

Section 29 of the YCJA sets out a three step process requiring the analysis of specific conditions in order to determine whether or not the prosecution has met its burden. THE FIRST STEP [ 9 ] In this matter, the defence concedes that the first step is met by the very nature of the offences. The four counts meet the definition of “serious offences” and therefore qualify for detention.

THE SECOND STEP [ 10 ] At this stage, the prosecution must demonstrate to the court, on a balance of probabilities, that the detention of the adolescent is necessary, either to assure the presence of the adolescent before the court or to assure the protection or safety of the public, including any victim or witness of the offence. [ 11 ] In the present case, the evidence does not support the conclusion that the adolescent would likely fail to attend court.

Although he may tend to be defiant or disrespectful both at school and at home, it would be unreasonable to infer that he would likely disregard his obligation to appear in court for this reason. His detention is not necessary on this ground. [ 12 ] On the second ground, the evidence demonstrates, on a balance of probabilities, that the detention of the adolescent is necessary to ensure the safety of the public. [ 13 ] In R. v.

Rondeau [2] , the Court of Appeal enumerates multiple criteria that must be considered when evaluating the dangerosity of an accused, in particular the nature of the offence, the circumstances surrounding the commission of the offence, the probability of a conviction, the participation of the accused and the accused’s relationship to the victim. The profile of the accused as well as his post- offence behaviour are also important considerations. The combined effect of all these elements is determinant. As mentioned by the Court of Appeal, refering to the Supreme Court decision R. v.

Morales [3] , « le risque sérieux de récidive visé par le législateur au par. 515

(10) C.cr ., n’est que l’un des éléments pertinents à la situation du litige, soit de décider si la détention est nécessaire pour la protection du public ». In other words, the serious risk of reoffending is only one of the elements that the Court must take into consideration. [ 14 ] In the present case, the combination of these multiple factors militate in favor of the detention of the adolescent to assure the safety of the public. THE NATURE OF THE OFFENCE [ 15 ] The adolescent is accused of several serious offences. The objective gravity of the offence of attempted murder is evident.

For an adult, attempted murder is punishable by a sentence of life imprisonment. The offence of aggravated assault is punishable by a sentence of imprisonment not exceeding fourteen years. The offence of possession of a weapon for a dangerous purpose is punishable by a sentence of imprisonment not exceeding ten years and the offence of carrying a concealed weapon is punishable by a sentence of imprisonment not exceeding five years.

THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE AND THE DEGREE OF PARTICIPATION OF THE ADOLESCENT [ 16 ] According to the evidence submitted, on December 9, 2021, the adolescent presented himself at [High School A] armed with a knife. After the first period, the adolescent stopped at his locker before going to the cafeteria. Around 10:08 a.m., the adolescent walked towards [the classroom of A] . At this point, A was standing outside his classroom near the door waiting for his students to enter the class.

When the adolescent arrived in front of him, he looked him in the eye and stabbed him in the left shoulder and in the chest trough his heart. [ 17 ] Having previously taught him over the course of two years, A easily recognized the adolescent. At the time of the stabbing, he exclaimed: "what did you just do X ." He then saw the knife that the adolescent was holding in his hand. The adolescent returned to his locker, took his jacket and left school.

On the screen shot taken by the school camera and submitted as evidence (exhibit EC-3), we can clearly see the knife in the adolescent’s right hand as he went to his locker and again when he takes his jacket. The identification of the adolescent is not an issue and the evidence suggests that he was acting alone. [ 18 ] The adolescent was intercepted between 10:30 and 10:40 a.m. on [Street A]. Upon arrest, he was asked if he was in possession of any weapons to which he immediately responded: "the knife is in my right pocket."

[ 19 ] Following what appears to be a proper caution, the accused made an incriminating statement establishing a premeditated intent to commit the offences in question. The adolescent was coherent throughout the interrogation and spoke fluidly. He explained that he acted as a result of an incident in class during roll call. Essentially, he failed to answer to his name so another student answered for him. The teacher acknowledged the situation by saying "Yeah", a response the accused perceived as aggressive and offensive. [ 20 ] He got home from school very upset and angry.

That evening, he searched the internet for ways to obtain a firearm but quickly realized that it was too complicated. He then decided to take the strongest knife he could find in his home and left with it for school early the next day, December 9, and carried out the attack. [ 21 ] The circumstances surrounding the offence are disturbing. They highlight the adolescent's complete disregard towards the victim’s life. In the course of the interrogation, the adolescent admitted that he stabbed the victim in the chest, " because he deserved it, because he is the worst ".

In particular, he states, " I stabbed him and it felt really good, I just wanted him to be gone ." When asked if he believed the victim deserved this, he responded by saying: " probably, I don’t care. " [ 22 ] The circumstances surrounding the offence establish that the crime was planned by the adolescent who was acting alone. [ 23 ] The incident is particularly violent, unpredictable and unexplainable.

A harmless and simple comment such as “yeah” by his teacher triggered this brutal and deliberate attack by the adolescent. [ 24 ] The victim sustained serious injuries that required an urgent surgical intervention to the heart. Several students and teachers have been traumatized by the events that occurred in front of them on that morning of December 9, 2021. [ 25 ] At his stage, nothing in the evidence indicates the existence of a possible defence.

Although the presumption of innocence continues to receive consideration at the bail hearing, the Court must nevertheless evaluate the strength of the crown’s evidence and probability of conviction. The cross-examination of the detective failed to demonstrate any weaknesses in the Crown’s evidence. [ 26 ] The elements highlighted in the various reports submitted as evidence demonstrate that the prosecution has a very serious case against the adolescent. The probability of conviction appears high.

PROFILE OF THE ADOLESCENT [ 27 ] The accused has no prior convictions. [ 28 ] At the time of the event, the adolescent was attending [School A]. He’s in grade 9, in a regular class, however in the program «[Program A] » dedicated for students with learning difficulties. [ 29 ] The adolescent is classified as a "code 50", indicating that he is diagnosed with autism spectrum disorder. On this subject, the mother informed the detective that in her opinion, her son’s condition has no impact on his daily functioning at home. His difficulties are only observed at school.

It should be noted that no proper medical information pertaining to the adolescent’s mental health has been tendered by either party. All other references in the evidence to the ASD diagnosis are insufficient to allow for a proper understanding of the accused’s status and as such, are essentially unreliable. Consequently, no inferences can be drawn in relation to the offences. [ 30 ] At school, the adolescent is described as a young man who presents difficulties regarding his social interactions. He presents himself as introverted, doesn’t talk much and avoids contact with other students.

He doesn’t have many friends and doesn’t demonstrate any interest in developing friendships. [ 31 ] When questioned by the detective, Y, a friend of the accused, stated that the adolescent brought a knife to school in the months preceding the offence to protect himself.

To her knowledge, the accused doesn’t have any issues with other students at school. [ 32 ] As revealed by the evidence [4] , the adolescent has been suspended on several occasions from school for repeated insubordination and disrespectful language towards the staff. [ 33 ] In an interview with the detective, the mother revealed that the adolescent was expelled from [High School B] in 2018 as a result of a physical altercation with the vice principal of the school.

He finished the school year at home and was admitted thereafter to [High School A]. [ 34 ] The mother concedes that ensuring her son’s attendance at school is a perpetual struggle. He doesn’t like school and regularly leaves the school grounds without permission. With the exception of December 9, every morning is a battle. That particular morning, her son was already gone when she returned home from dropping her daughter off at school.

She found the situation highly unusual. [ 35 ] The mother testified to the fact that she has tried her best regarding the adolescent’s school attendance problem but her interventions were unsuccessful. She has tried to reason with him, to no avail. He does not actively participate in their conversations, tending to remain quiet and reserved. [ 36 ] The mother’s testimony indicates a propensity to deflect responsibility onto the school, claiming that it’s their responsibility to ensure that he stays there. She demonstrates a certain degree of helplessness. " What can I do?

" , she asks. [ 37 ] From her interactions with both the accused and his mother, Ms. B, teacher at [High School A], finds that the mother has no control over her son and that the adolescent is the one making the decisions at home. As an example of his behaviour, she describes that during a meeting at school, she witnessed the accused ordering his mother to shut up. [ 38 ] Despite expressing some concern about her son’s friends and his whereabouts, the mother testifies that her son never lies to her and that she believes what he tells her.

Confronted with the fact that the adolescent admitted to consuming alcohol with friends, the mother persists in denying that he drinks, claiming he’s not like that.

[ 39 ] Of great concern is the mother’s lack of information regarding the nature of her son’s medical follow up and prescription of drugs. The evidence reveals that the adolescent refuses to inform her of his medical status and refuses to allow her access to his medical file. Consequently, she knows nothing of the medication he takes nor the reasons for them. Moreover, she was unaware that he had been suffering from suicidal ideations until he was hospitalized. [ 40 ] The mother’s ability to adequately supervise the adolescent appears deficient.

The evidence demonstrates that she is often unaware of his whereabouts. Furthermore, he has left home and school without permission on multiple occasions. This past September, the mother sought police assistance when he failed to return from school and couldn’t be reached. Another time, the adolescent left in the middle of the night without advising her. When she attempts to discuss these situations with her son, he refuses to answer her questions about where he is, who he’s with or what he does.

The mother remains in the dark when it comes to her son’s activities. [ 41 ] The mother’s inability to exercise her parental authority in any effective manner is further demonstrated by an incident occurring in December 2020. The mother had planned a family vacation in Pakistan and had purchased plane tickets for the family. At the last minute, the adolescent refused to leave, choosing instead to go to his girlfriend’s house. Concluding that he would make problems if she didn’t let him go, she had to leave without him and asked the uncle to supervise during her absence.

Following the mother’s departure, the adolescent stopped attending school and failed to respond to his uncle’s attempts to reach him. Consequently, the uncle resorted to calling 911 and the adolescent was eventually located in his room by the police.

The adolescent explained that he didn’t want to see his uncle and that he could take care of himself. [ 42 ] The evidence leads the court to the following conclusions concerning the adolescent: • He presents disrespectful behaviour and exhibits repeated insubordination towards school staff; • He leaves the school premises without permission; • He doesn’t respect his mother’s authority and can be impolite towards her; • He doesn’t respect his uncle’s authority; • He is secretive about his personal life, his friends, his whereabouts and his medical follow-up; • The adolescent has been involved in a prior act of violence towards a school staff member leading to his expulsion from school in 2018; • He exhibits unpredictable behaviours; • He has presented himself at school, prior to the offence, armed with a knife. [ 43 ] Concerning the mother’s testimony, the Court notes the following: • She knows nothing of her son’s whereabouts when he leaves the house; • She doesn’t know her son’s friends; • She’s not aware of her son’s mental health condition and follow-up; • She doesn’t have access to any information concerning her son’s life; • She is not allowed in her son’s room when he is there and she accepts this rule from her son; • She is unable to effectively exercise her parental authority concerning her son’s school attendance and disrespectful behaviours; • She is unable to effectively exercise her parental authority when her son refuses to travel with the family as planned; • She minimizes the extent of her son’s difficulties, claiming that he doesn’t have any issues at home. [ 44 ] The charges are extremely serious.

The evidence indicates that the accused committed an assault characterized by brutality, violence and premeditation. The adolescent’s dangerous actions remain unexplained and unexplainable. His intent to kill the teacher can be reasonably inferred from his statement and reveals, at the very least, a complete disregard for the victim’s life. The adolescent’s profile offers no reassurance. The evidence indicates that he exhibits aggressive and disrespectful behaviours towards authority figures at school. He is disrespectful of his mother and uncle, overtly defying their authority.

The accused presents unpredictable and incontrollable behaviours that represent a serious risk to society. [ 45 ] In this context, and taking into account the evidence as a whole, the combined effect of said evidence and the application of the principles of the YCJA, the Court is convinced, on a balance of probabilities, that the detention of the adolescent is necessary to ensure the protection of the public. [ 46 ] The evidence reveals that no combination of conditions would be sufficient to manage the risk that the accused represents to society. [ 47 ] As a result of this conclusion, it is unnecessary to analyse the third ground submitted by the prosecution.

THE THIRD STEP [ 48 ] The Court must, as required by

section 31 of the YCJA, determine if a responsible person is willing and able to take care of and

exercise control over the adolescent. [ 49 ] In accordance with the teachings of the Court of Appeal in R.v.J.M [5] ., the judge can take into consideration the nature of the offence and the circumstances surrounding the commission of the offence when analysing the alternative of entrusting a young person in the care of a responsible person. The judge must be satisfied that the person identified is able to care for the young person and that she is well informed of the activities and whereabouts of the young person. [ 50 ] The mother loves and cares for her son.

She is concerned about him and tries her best to exercise her parental authority. [ 51 ] Nevertheless, the mother’s testimony confirms her lack of authority over her son. She has no information regarding his personal life, his whereabouts, activities, friends and medical status. She was unaware that her son was consuming alcohol and that he carried a knife to school.

The evidence also suggests that the adolescent is in a position of control over his mother. [ 52 ] The mother’s attitude towards her son’s behaviour in school reveals that she has no authority over his actions. [ 53 ] The mother’s description of her relationship with her son indicates an alarming degree of dependency on her part. She says that her son is a good boy who takes care of her. She gives him full access to her credit card and bank accounts and he takes care of the financial expenses of the family. She tells the Court that her son is "her guardian" and that she feels safe with him.

Asking the mother to assume the responsibility of ensuring that her son respects the conditions of an undertaking would be futile. Clearly, she has no control or influence over him. [ 54 ] Even if the court acknowledges the mother’s willingness to remedy the situation and to exercise a more effective parental authority over her son, the evidence reveals, on a balance of probabilities, that she is not capable of exercising any form of control whatsoever. FOR THOSE REASONS, THE COURT [ 55 ] ORDERS the detention of the adolescent, X , until the end of the proceedings.

Signed and filed on January 18, 2022 __________________________________ ANNIE SAVARD, J.C.Q. Me Mélanie ROSE Attorney for the pursuant Me Tiago Murias Attorney for the defendant Date d’audience : January 12, 13 and 17, 2022