R. v. B.H., 2017 ONCJ 540

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 Toronto Region CITATION : R. v. B.H. , 2017 ONCJ 540 DATE : August 4, 2017 B E T W E E N: HER MAJESTY THE QUEEN v. B.H. JUDICIAL INTERIM RELEASE HEARING: REASONS FOR JUDGMENT Hearing Date: July 31, 2017 Judgment: August 4, 2017 Before: Her Worship Mary A. Ross Hendriks Counsel: Ms. V. Culp, Crown Counsel

Mr. E. Willschick, Defence Counsel INTRODUCTION: [ 1 ] The accused is B.H., who is an 18-year old man. He is a Canadian citizen, who resides in Thornhill, ON with his mother, 21-year old brother and 3-year old sister. [ 2 ] Crown counsel at this judicial interim release hearing is seeking his detention on the secondary and tertiary grounds. It is a reverse onus bail hearing, so it is incumbent on him to show cause why he should be released, on a balance of probabilities. THE ALLEGATIONS: [ 3 ] On Thursday, February 16, 2017, at 3:27 pm, police executed a Criminal Code search warrant at Mr. B.H.’s residence. Mr.

B.H. was arrested and provided the police with his house key, which was used for entry. [ 4 ] Mr. B.H.’s bedroom is in the basement of the home, which is an allegation that I accept is factually correct for the purposes of this hearing, since it has been corroborated by his proposed sureties, and the police located his identification in that bedroom.

A search of his bedroom yielded the following items: 3 rounds of 12 gauge shot-gun shells; 1 spent 12 gauge shot-gun shell; one 9 mm round of ammunition; 53 rounds of unknown calibre ammunition; an over-capacity ammunition magazine clip for a handgun, and a container of black powder which is believed to be gun powder. In addition, within his bedroom, police found hand drawn schematics of a firearm, and various parts for a 9 mm hand gun.

They also found several manuals for hand gun assembly and parts (Exhibits 4 and 5). [ 5 ] When police searched a closet in the basement which is adjacent to his bedroom, they found what has been described as a homemade zip gun resembling a sawed-off 12 gauge shot-gun. The Crown alleges that some of the hand drawn schematics found in his bedroom match this homemade shot-gun. HIS RELATED RECORD: [ 6 ] Defence counsel admitted Mr. B.H.’s record for the purpose of this bail hearing (Exhibit 1).

It states as follows: 2017-01-31 (Youth) – Robbery and Fail to comply with recognizance Sentence: 6 months deferred custody and mandatory weapons prohibition 2017-01-31 (Youth) – Robbery, unauthorized possession of a prohibited or restricted weapon, fail to comply with conditions of undertaking given by OIC Sentence: probation for 2 years, credit for 33 days of pre-sentence custody, and mandatory weapons prohibition [ 7 ] Crown counsel is particularly concerned about the allegations in this case, since Mr.

B.H. pleaded guilty on January 31, 2017, at the Ontario Court of Justice in Newmarket, to the following offences: robbery with an offensive weapon; unauthorized possession of a firearm; and fail to comply with undertaking. [ 8 ] As a result of his guilty plea, Justice Henschel had put Mr. B.H. on a two-year Probation Order, which included the condition to “keep the peace and be of good behaviour”, as well as placing him on a weapons Prohibition Order for a period of ten years.

HIS PRIOR JUDICIAL INTERIM RELEASE ORDERS: [ 9 ] Crown counsel provided me with copies of his two prior judicial interim release orders as a youth (Exhibits 2 and 3), which demonstrate that Mr. B.H. has been put on house arrest twice, for violent robberies and weapons offences, including unauthorized possession of firearms, and he breached his bail, and has pleaded guilty to that breach. [ 10 ] Moreover, with respect to his criminal record, Crown counsel alleges that it is related, since Mr.

B.H. has recently pleaded guilty to a violent assault where another man’s finger was broken, and a weapons charge that stemmed from being in possession of a silver pistol which had its barrel bored out, and thus had been modified to hold bullets. In particular, this weapon, among others and a small quantity of marijuana, was found inside of a vehicle in which Mr. B.H. and his co-accused had travelled, and during his guilty plea, he admitted to knowing that this weapon was inside the vehicle. [ 11 ] Mr. B.H. received a second house arrest bail release as a youth.

In that matter, Crown counsel alleges that he committed a robbery with a knife, which he used to injure the victim. THE CURRENT CHARGES AGAINST THE ACCUSED:

[ 12 ] The sworn Information before me charges Mr. B.H. with 14 counts, as an adult, which are as follows: #1 – unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code #2- possession for the purpose of weapons trafficking, contrary to s. 100(1) (

a) of the Criminal Code #3 – possession of a firearm knowing its possession is unauthorized, contrary to s. 92(1) of the Criminal Code #4- careless storage of a firearm, contrary to s.86(1) of the Criminal Code #5- possession of a firearm contrary to a Prohibition Order, contrary to s. 117.01(1) of the Criminal Code #6 – careless storage of ammunition, contrary to s. 86(1) of the Criminal Code #7- possession of ammunition contrary to a Prohibition Order, contrary to s.117.01(1) of the Criminal Code #8 – possession of ammunition knowing that its possession is unauthorized, contrary to s.92(1) of the Criminal Code #9 – possession of a prohibited device knowing there is no authority, contrary to s. 92(2) of the Criminal Code #10 – possession of a prohibited device contrary to a Prohibition Order, contrary to s.117.01 of the Criminal Code #11- careless storage of a prohibited device, contrary to s.86(1) of the Criminal Code #12- unlawfully in possession of explosives, contrary to s. 82(1) of the Criminal Code #13 – Possession of an explosive substance contrary to Prohibition Order, contrary to s.117.01(1) of the Criminal Code #14- Fail to comply with the Y.C.J.A .

Disposition, s. 137 THE PROPOSED PLAN OF RELEASE: [ 13 ] Defence counsel called three proposed sureties, Mr. B.H.’s mother, his older brother, and a family friend. Defence counsel also called Mr. B.H., to testify on his own behalf. Evidence of T.N.: [ 14 ] Ms. T.N., testified that she is his mother. She resides in a three-bedroom home in Thornhill, with her oldest son, E.H., the accused, and her three-year old daughter. [ 15 ] Ms. T.N. has no criminal record and no outstanding charges.

She is offering herself as a surety for her son, and is prepared to pledge $5,000 to secure his release, which she has in her savings. Ms. T.N. is qualified as a chef, but her plan is to stay home 24/7 with her son, and move his bedroom upstairs, so that she can monitor his activities.

Her family will continue to support her while she stays home to monitor her son. [ 16 ] While she is pleased that her son took some high school courses while at the Roy McMurtry Youth Centre, if he is granted release, she wants him to enroll in home schooling, and not have any exceptions to his house arrest condition this time. [ 17 ] She admits that when she bailed him out at age 15, on a house arrest bail with an exception to permit him to attend school, he robbed another student with a knife while at school.

She had dropped him off at school on the day of this robbery. [ 18 ] Despite his antecedents and conviction for breach of recognizance, she visited him while he was at the Roy McMurtry Youth Centre, and she believes that he will be obedient if released this time. She has also arranged for his worker, Rebecca Rodrigue to continue to assist him if he is released from custody. [ 19 ] In her evidence, she described the basement of her home as a place for “youth to hang out”. [ 20 ] Her home has two stories and a basement, as well as an alarm system.

She plans to install a camera in his bedroom if he is released. [ 21 ] She testified that Mr. B.H. does not have any issues with alcohol, drugs or his mental health. [ 22 ] She understands that the quantum pledged by herself and her brother on his breached bail is at risk, which was $5000 for her, and $45,000 for her brother. [ 23 ] During cross-examination, she was asked if she was not putting forward other family members out of a fear of risking their money again.

She denied that this was the reason, and maintained that, “I don’t allow my family to know.” Later on in her testimony, she stated: I feel that I’m at fault regarding my parents. I have asked them for help a lot. Put a lot of burden on them…feel guilty. Me and my eldest son need to bear the burden for my youngest son. [ 24 ] Crown counsel again challenged this evidence, stating that at a prior bail hearing, Ms. T.N. had testified that she didn’t want her father to lose his money. When confronted with this, Ms.

T.N. again insisted that her father has bailed out her son in the past, but that she did not confide in her extended family this time, because she said that she wants to have “total responsibility for my son.”

[ 25 ] She acknowledged that while her son was on a prior release, he robbed another youth with a knife and hurt him. She is aware that he has pleaded guilty to this matter. [ 26 ] During cross-examination, she admitted that after he pleaded guilty in January, 2017, and was put on probation, she had talked to her son about complying with his order and turning his life around. Nevertheless, he was arrested two weeks later and found in possession of a firearm. [ 27 ] His mother maintains that B.H., her older son and his friends, all have access to B.H.’s bedroom and the basement closet in question.

She testified that family and friends use the basement closet to retrieve home supplies, and toilet paper. No one else in their social circle is known to possess weapons, however. [ 28 ] Ms. T.N. testified that her 3-year old daughter only goes to the basement when she takes her there, while she is doing chores. Ms. T.N. also testified that her daughter sleeps in her room with her upstairs. [ 29 ] Ms. T.N. is prepared to call the police on her son if he breaches any conditions of bail. Evidence of E.H.: [ 30 ] Mr. B.H. testified that he is the accused’s older brother.

He lives in the same residence as his immediate family. He has no criminal record and no outstanding charges. [ 31 ] He works as a renovator, from Monday to Friday, 9 am to 6 pm, and sometimes on Saturdays from 9 am to 6 pm. He earns about $30,000 per year. He plans to return to school this fall, and study electrical engineering at Centennial College, which is 20 minutes from their home. He does not have his school

schedule yet. When he returns to school, he will not be working at the same time. [ 32 ] Mr. B.H. has about $20,000 in his bank account, and he’s prepared to pledge all of it to secure his brother’s release. [ 33 ] He has gone to visit his brother at the Roy McMurtry Youth Centre, and said that he has changed in a positive way while in custody. He’s not concerned that his brother will breach this bail, if granted. He described his brother as appearing “more punctual, more polite, and more solid now”.

He was impressed that he was obtaining his credits for high school while staying at the Roy McMurtry Youth Centre. [ 34 ] Mr. B.H. testified that the plan is to have his brother enroll in home schooling, and that he would live upstairs with him, and his mother. [ 35 ] Like his mother, Mr.

B.H. believes that his brother does not have any mental health, drug or alcohol issues. [ 36 ] His plan is for his brother to return to living with them, on house arrest, and continue to receive support from Rebecca Rodrigue. [ 37 ] Although he is aware of the fact that his brother has a criminal record, he was unaware of the specifics of his prior convictions. He did go to court with his brother when he pleaded guilty, and he knows that his brother breached a house arrest bail when he robbed another youth with a knife, and cut his face with that weapon. [ 38 ] Mr.

B.H. testified that only his friends are permitted to come to their home. His brother’s friends weren’t allowed to come over, since that would have violated the conditions of his prior release. [ 39 ] When shown photographs of the basement closet in question, Mr. B.H. identified it as containing his brother’s clothes and hats. He said that his brother smokes cigarettes. [ 40 ] When asked if he and his friends went into that basement closet, he replied, “no”. When asked if he or his friends make or possess any firearms or related materials, he replied, “no”.

His friends and his extended family do not make or possess weapons. He could not identify the handwriting on the handmade schematics. [ 41 ] He admitted that he was surprised that his brother was arrested again, and that weapons were found in his bedroom, two weeks after he pleaded guilty to other charges. He also admitted that his sister’s safety was of concern to him.

He denied knowing that there were any weapons in his brother’s bedroom. [ 42 ] During cross-examination, he did state that the basement closet was used to store household items, such as paper towel and toilet paper, and as such, friends and family sometimes access this closet. Evidence of B.H.: [ 43 ] Mr. B.H. was affirmed and he testified on his own behalf. He has been at the Roy McMurtry Youth Centre from the time of his arrest in February, 2017, until his transfer to Toronto South Detention Centre very recently, since he is now 18 years old.

This is the first time that he has had to stay in an adult facility, and he is not enjoying it. [ 44 ] He testified that while he was staying at the Roy McMurtry Youth Centre, he obtained several school credits and took a number of other programs offered by them. To his credit, he has amassed a number of certificates as a result, including: two in HUB Financial Literacy, one from the HUB Employment Program, a Character certificate from the Peel District School Board, a certificate for Effective Programming Impacting Change, a certificate for the Road to Redemption, and a certificate for Stop Now and Plan.

He received two academic awards while at the Roy McMurtry Youth Centre, including the Senior Math Award from the Peel District School Board, and a Student Success Award of Excellence, dated May 2017, from the Peel District School Board. He has also sought clinical support for the first time while at the Roy McMurtry Youth Centre, and that he is learning how to control his anxiety. He has received a Certificate of Recognition from them, dated March 29, 2017, for completing their Anxiety Workbook module. These various certificates were collectively entered into this show cause hearing as Exhibit 6.

[ 45 ] In addition, he received a letter from Rebecca Rodrigue, of the Leadership Engagement Gang Intervention Team, 360 Kids, dated July 26, 2017 (Exhibit 7). In this letter of support, Ms. Rodrigue describes how Mr. B.H. is motivated, polite, regrets his mistakes, and is ashamed of his involvement in the justice system. She further describes how his mother is supportive, and visits him regularly. He has completed various high school and life skill courses, and wants to go on to trade school and become an electrician or work in HVAC. [ 46 ] In her letter, Ms.

Rodrigue described how he has benefitted from the support of a social worker, a counsellor, doctors, access to supports through 360 Kids, and her concern that if he is not granted bail, he would be housed at an adult detention facility where he would receive little to no programming. If he were granted bail, she agrees to continue to support him in the community with case management, in the form of education programs, finding meaningful employment, and informal counselling. [ 47 ] Mr. B.H. testified that he has matured recently.

He is capable of holding down a job and he has done so in the past, including at Swiss Chalet, Popeyes, and at a custom metal factory. He wants to go to college and take HVAC. [ 48 ] While at the Roy McMurtry Youth Centre, he has taken programs for anger management, family counselling, anxiety and how to control his emotions. At this point, he testified that he does not have a diagnosis. Evidence of V.T.L.: [ 49 ] Ms. V.T.L. testified that she has been friends with the accused’s mother since they were 10 years old, back in Vietnam. She arrived in Canada in 2000. She has known Mr.

B.H. since he was 2 years old. [ 50 ] Ms. V.T.L. has no record and no outstanding charges. She works three days per week at a nail salon. She resides in Markham, which is 10 minutes by car to Mr. B.H.’s home. She has two children of her own, ages 13 and 10 years. She is prepared to pledge $5000. [ 51 ] Ms. V.T.L. is aware of Mr. B.H.’s criminal record. She went to visit him while he has been in custody. She testified that he cried to her that he understands a lot more now. He has said that he is afraid of being in jail, and won’t do anything to end up in this situation again.

She is prepared to visit their house every day or every other day, and said that she passes their house on her way to work. Ms. V.T.L. said that her job is flexible, and that she could cover for his mother if need be. [ 52 ] She and Mr. B.H.’s mother visit one another two or three times per week. She has never had to supervise him directly, however. After he started being arrested, she told him that he was intelligent, and that he should be a good boy and make good use of his intelligence. [ 53 ] Ms. V.T.L. said that Mr. B.H. has always helped out at home, gone to school, and assisted her at her home, as well.

He has been good with his younger sister and helped his mother by babysitting. [ 54 ]Ms. V.T.L. believes that the breakdown of his parents’ marriage contributed to his issues. [ 55 ] In the past, Ms. V.T.L. has brought her children to their home, and her children have played in the basement. FINAL SUBMISSIONS: [ 56 ] Defence counsel argued that the charges are quite serious, and admits that his client’s record is related. However, the breach of bail for which he has been convicted occurred when he was only 16 years old.

He asked me to consider the fact that youth mature greatly between the ages of 16 and 18 years of age. [ 57 ] In addition to a very tight plan of house arrest release, he also urged me to consider the fact that a Preliminary Inquiry is scheduled for December, 2017, so the matters are proceeding. To date, there are no results on the firearms testing. The Criminal Code distinguishes between imitation and real firearms, and he asked me to weigh this factor, as well.

He also argued that the search warrant was granted on the basis of two tips, which he submits were not corroborated, and thus, he argues that there are triable issues in this case. [ 58 ] Defence counsel noted all of the successes that Mr.

B.H. achieved while in custody and how much more he could do to better himself with programs if he were released. [ 59 ] Because of the tightness of the plan, defence counsel submits that he has met his onus on the secondary ground, and because there are some triable issues in this case, he submits that he has also met his onus on the tertiary ground. [ 60 ] Crown counsel argued that Mr. B.H. has told his sureties in the past that he would follow any conditions of bail, and that they believed him on those occasions, as well as now. His track record is far different from what he tells his sureties, however.

While on a house arrest bail for a quantum of $50,000, he breached his bail by committing a violent offence against another student. [ 61 ] Crown counsel argued that while the sureties are all well-meaning, they are unable to control him. His mother’s friend minimized his criminal record, and his brother will soon be back at school and unable to provide much supervision to his younger brother. Most of the plan falls to his mother, who has been his surety before when he has breached his bail.

All three proposed sureties have told him in the past to listen and to follow the rules, and he has breached his bail anyway. [ 62 ] Crown counsel argued that whether or not Mr.

B.H. is able to receive many programs while being housed at Toronto South is not a relevant consideration on the secondary and tertiary grounds. [ 63 ] Crown counsel also argued that a reasonable member of the public would lose confidence in the administration of justice if he or she knew that someone who had pleaded guilty just two weeks earlier and put on a probation order and a prohibition order was found in possession of a homemade gun, ammunition and gun powder, albeit not yet tested.

The manuals and handmade diagrams found match the homemade gun, all of which were found either in his bedroom, or the closet close to his bedroom, where he kept his clothing.

[64] Crown counsel also noted that his younger sister and Ms. V.T.L.’s children, in particular, have played in the basement, where theweaponry was found, which is a tremendous safety risk. ANALYSIS: The Right to Bail: [65] The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, enacted as

Schedule B to the Canada Act, 1982(U.K.) 1982, c.11, which came into force on April 17, 1982 (the “Charter”), provides that any person charged with an offence has theright to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal,as per

section 11(d); and not to be denied reasonable bail without just cause, as per

section 11(e). [66] In R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, at paragraph 43, the Supreme Court of Canada held that sections11(

d) and 11(

e) of the Charter are “parallel rights”. Similarly, the Ontario Court of Appeal held in R. v. A.A.C., 2015 ONCA 483, at paragraph 41, as follows: All accused, including those charged with serious crimes are constitutionally entitled under s.11(

e) of the Charter of Rights andFreedoms not to be denied reasonable pre-trial bail without just cause. Pre-trial bail for an accused person is the general rule anddetention is the exception. A claim for detention of an accused under s.515(10)(

c) must be approached in this context. [67] Section 515(10) of the Criminal Code establishes that pre-trial detention is only justified when one or more of the following threegrounds has been established: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offencethat involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [68] The Criminal Code explicitly permits hearsay to be considered at a bail hearing, see: section 518(1)(e), which directs that, "thejustice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case." Secondary Ground: [69] The Supreme Court of Canada recently released its judgment in R. v.

Antic, 2017 SCC 27 , [2017] S.C.J. No. 27, in which itimplored both justices of the peace and judges to apply what it termed as the “Proper Approach to Bail Moving Forward”, as describedby it in paragraphs 64 to 68. In particular, it listed specific principles and guidelines for the courts to follow under paragraph 66. Ofthose principles articulated under paragraph 66, I find that the following are relevant at this bail hearing: (

a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional rightto bail. (

b) Section 11(

e) guarantees both the right not to be detained bail without just cause and the right to bail on reasonable terms. (

c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s.515(1). (

d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release isfavoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds”:Anoussis, at para. 23. This principle must be adhered to strictly. (

e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form ofrelease, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of releaseunless the Crown has shown it to be necessary having regard to the statutory criteria for detention. (

f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where parties disagree on the form of release, it is an error of law for a justice or judge to order a more restrictive form of releasewithout justifying the decision to reject the less onerous forms. Where is Mr. B.H. on the Bail Ladder? [70] Given this clear direction from the Supreme Court of Canada, I must determine where Mr. B.H. falls on the “bail ladder”.

[71] Clearly, the onus is on Mr. B.H., on a balance of probabilities, to show why he should be released. [72] Crown counsel is correct that at the time of his arrest in February, 2017, Mr. B.H. appears to have breached both his ProbationOrder and his weapons Prohibition Order, made when he was still a youth, within two weeks of his guilty plea in Newmarket. [73] His mother, older brother and family friend have all come forward and offered 24/7 supervision of Mr.

B.H., which is a morerestrictive form of house arrest bail than the last house arrest bail, since there would be no exceptions to permit him to attend school. [74] The fruits of the search warrant in his bedroom and the adjacent closet used by Mr. B.H. are very disturbing to me. The items seizedincluded a homemade zip gun resembling a sawed-off 12 gauge shot-gun, plus various types of ammunition, an over-capacityammunition magazine clip, and black powder believed to be gun powder. [75] Mr. B.H. is clearly at a fork in the road, and he is either granted a 24/7 house arrest bail, or detained.

There are some nuances to thisbail hearing, however. Nature of the Firearm Seized: [76] Defence counsel ably pointed out that despite the fact that his client has been in custody since February, 2017, the purported firearmthat was seized has yet to be tested. [77] There is a significant distinction between an imitation or replica firearm, both defined by section 84(1) of the Criminal Code, versusan actual firearm, that upon conviction, typically attracts a two or three year sentence, subsequent to the Supreme Court of Canada’sjudgment in R. v.

Nur, 2015 SCC 15 , that struck down the mandatory minimum sentences for possession of a prohibited orrestricted firearm. [78] Mr. B.H. has been charged with possession of both a firearm and ammunition contrary to a Prohibition Order, in violation ofs.117.01(1) of the Criminal Code, which are some of the most serious allegations made against him at this bail hearing. However,s.117.01 of the Criminal Code can be either an indictable or a

summary offence, again, predicated upon the nature of the firearm. According to R. v. Stacey (2009), 2009 NLCA 68 , 249 C.C.C. (3d) 389 (Nfld. & Lab. C.A.), “in the absence of evidence ofpresent operability through firing, by virtue of missing or broken parts or modifications, expert evidence is required to establish that thegun is a firearm.” [79] Normally at a bail hearing, I would accept the Crown’s case at the highest, and find that a firearm discovered as the result of asearch warrant is what it appears to be.

However, I would make that assumption in favour of the Crown, if the firearm were acommercially manufactured firearm. The Criminal Code permits me to accept hearsay evidence if I believe it is credible or trustworthy.Since the weapon that was discovered in this particular case is of dubious quality, and no weapons testing has been performed, I amunable to make any assumptions about its viability as a true firearm. Thus, for the purposes of this bail hearing, I am assuming that it isan imitation firearm.

If Crown counsel wanted me to assume it was functionally akin to a true firearm, they could have arranged for it tobe tested over the course of the last six months. The Supreme Court of Canada has recently directed that all participants in the justicesystem must work in concert to achieve speedier trials, see: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. [80] That being said, if Mr. B.H. were to be convicted for the first time as an adult, even with the apparent probation and weaponsprohibition breaches, I anticipate he would receive a sentence of about one year.

He has already served six months of pre-trial custody,and so I am very leery of denying him bail, because I anticipate that this would result in him serving more time than he would have beenrequired to serve if he had been tried and convicted, particularly since he is presumed to be innocent at this juncture in time. [81] Moreover, I find that his sureties are all sincere and very dedicated to Mr. B.H.. His mother is prepared to forego returning to workuntil his legal issues have been dealt with fully, so that she can supervise him 24/7 on a bail release.

His brother and family friend areboth very committed to assisting his mother. All three proposed sureties visited him regularly in jail, and they have a strong bond to him.Thus, the plan proposed is stricter than his previous plan of release. It is also telling that his sureties left him in pre-trial custody for sixmonths. I am prepared to infer that his mother, in particular, is applying what is known as “tough love” to her son. [82] Finally, Mr. B.H. has demonstrated remarkable resiliency during his six month stay at the Roy McMurtry Youth Centre.

Ms.Rodrigue’s letter is a testimony to his hard work to turn his young life around. He has taken a number of high school courses andbehaviour modification sessions, and achieved remarkable results. I was very impressed with his testimony, and his willingness tocontinue on the right path should he be released back into the community on strict house arrest. His recent increased maturity bodes wellfor the plan of release proposed. In support of this finding, I rely upon R. v.

Slack, 2015 ONCA 94 at paragraph 13, where the OntarioCourt of Appeal considered conduct during pre-sentence detention, and finding that it included three documented instances ofmisconduct, declined to provide enhanced pre-sentence custody. Pre-sentence behaviour, both good and bad, must be acknowledged andgiven appropriate weight both at the bail stage and at the trial stage. [83] Given all of the above, Mr. B.H. has met his onus on the secondary ground.

Tertiary Ground: [84] There are four factors articulated under the tertiary ground, and I will consider each of them, below, in order. [85] In terms of the apparent strength of the Crown’s case, the Crown’s case rests heavily on physical evidence that has yet to be tested,found in the basement bedroom of Mr. B.H.. Overall, the Crown has a good case against Mr. B.H., but to date, there are no fingerprintsor other types of evidence that conclusively link the purported firearm and ammunition to Mr. B.H.. [86] In terms of the gravity of the offence, this case could turn into either a

summary or indictable matter depending upon the outcome ofthe testing of the homemade firearm.

[ 87 ] The circumstances of the commission of the offence, taken at their highest, involve the assembly of a homemade firearm, which was unloaded when found, and ammunition. The firearm was not used in the commission of an offence, but its subject-matter is the offence, since he was on a weapons Prohibition Order and a Probation Order at the time of its discovery. [ 88 ] In terms of the length of imprisonment if convicted, I find that Mr. B.H.’s matter could turn into a relatively short sentence, likely 6 to 12 months, versus 3 years, depending upon the testing of the firearm, and whether the case is

summary or indictable, even taking into consideration the fact that he was on both a Probation Order and a weapons Prohibition Order at the time of this offence, in part, in recognition of the fact that this would be his first conviction as an adult. [ 89 ] Thus, I find that an informed member of the public, who understood the right to a reasonable bail, apprised of both the evidence before me and the strength of this very strict plan of release, would not lose confidence in the administration of justice if Mr. B.H. were to be released. Accordingly, he has discharged his onus on the tertiary ground.

ORDER: [ 90 ] Mr. B.H. is hereby released to the supervision of three named sureties: T.N., in the amount of $5000, no deposit; E.H., in the amount of $20,000, no deposit, and V.T.L., in the amount of $5000, no deposit. [ 91 ] Mr. B.H. must reside with Ms. T.N., at I[...] Blvd, #[...], Thornhill, ON, and follow the rules of the home. He must notify the Officer-in-Charge of his case, or that officer’s designate, of any change of address within 24 hours of such change. [ 92 ] He is on strict house arrest, and he must remain in his residence 7 days a week, 24 hours a day.

He is not permitted to leave the residence unless in the direct and continuous company of one of his sureties, unless it is for a medical emergency involving himself or a member of his immediate family. [ 93 ] Mr. B.H. must take all counselling and programs as directed by his sureties, and sign releases, so that they can monitor his attendance and progress. [ 94 ] Mr. B.H. is not permitted to possess: a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things until dealt with according to law; any weapon(

s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition, or explosive substance or anything designed to be used or intended for use to cause injury, death or threaten or intimidate any person); or any imitation of above. [ 95 ] If he now possesses any weapon(

s) as defined by the Criminal Code , he must deposit them, along with every authorization, licence and registration certificate relating to any of these items to the police within 48 hours of his release from custody, and not apply for any new ones. Dated at Toronto, this 4 th day of August, 2017. ______________________ Mary A. Ross Hendriks