Her Majesty the Queen - v. -, 2015 SKPC 059

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2015 SKPC 059 Date: April 13, 2015 Information: 39122799; 37399771; 37399819; 39593605; 39593511; 36863321; 38979381; 39593403 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.C. Appearing: Ms. Lauren Ellis For the Crown Mr.

Blaine Beaven For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. JUDGMENT F. M. DAUNT, J INTRODUCTION: [ 1 ] Since the Youth Criminal Justice Act came into force in 2003, all classes of offences charged against young persons has

decreased, with one exception: failing to comply with conditions. Furthermore, although the rate of youths in sentenced custody has declined significantly, the rate of youths in remand has remained stable. Currently, nationwide, over half the youths in custody are awaiting trial or sentencing. [1] D.C.’s journey through the youth justice system should serve as a cautionary tale to judges, myself included, who rubber stamp conditions of release when jointly presented through counsel. [ 2 ] D.C. was 14 years old when she appeared before this Court for the first time in her life.

On November 14, 2014, she stood in the prisoner’s box to face allegations that she had, some five months earlier, participated in a break and enter wherein a co-accused deployed bear spray in a dwelling house. Despite her stable home and lack of criminal record, she was released by consent on an undertaking with numerous conditions. Since then, she has been before the Court five times, in custody, charged with one minor non- violent substantive offence and multiple breaches of her release conditions. She has been released every time, on equally or more onerous forms of release.

Now she comes before the Court again charged with breaching her curfew and abstention clauses, as well as resisting arrest. The Crown applies to detain her in custody on the new charges, and to revoke her previous release documents and remand her in custody until dealt with according to law, pursuant to section 524(8) of the Criminal Code and section 29(2) of the Youth Criminal Justice Act. [ 3 ] At the outset, I informed both counsel that I heard the trial of a co-accused on the most serious charges, and asked if there was any issue with my hearing the bail application. Neither counsel objected.

With her mother present to support her, D.C.’s show cause hearing proceeded by way of submissions of counsel on March 18, 2015. I reserved until March 20, 2015. As of that date, D.C. had spent a total of 27 days in pre-trial custody. I revoked her previous release document, and released her upon entering into a new undertaking on all charges. I promised written reasons to follow. These are those reasons. ALLEGATIONS: a. June 14, 2014 [ 4 ] The most serious charges facing D.C. are also the first in time. Although “10-15” youths were involved, D.C. is co-accused on the same information with only two other youths.

She stands charged that she did: 1. Break and enter a place, to wit, a dwelling house situated at 211 23 rd Street East, Prince Albert, Saskatchewan, and did commit therein the indictable offence of assault with a weapon, contrary to section 348(1) (

b) of the Criminal Code . 2. In committing an assault on Leo Felix, use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 3. In committing an assault on Leon Keenatch, use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 4. In committing an assault on Vivian Badger, use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 5. In committing an assault on Jeffery Bighead, use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . 6. In committing an assault on Amanda Constant, use a weapon, to wit: bear spray, contrary to

section 267 (

a) of the Criminal Code . [ 5 ] The Crown proceeded by indictment on counts 2 to 6. The Crown alleges that on the date in question, Vivian Badger evicted her daughter and a group of 10-15 teenagers from her basement. They were sharing a 60 oz. bottle of vodka. The teens returned to the home. One of them kicked down the door and a group of teens entered. One of the teens deployed bear spray in the home, affecting five or six people. One Crown witness alleges that D.C. was one of the teens who went back into the home after the door was kicked in.

The Crown is not alleging that D.C. deployed the bear spray, that she kicked down the door, or that she herself was violent. D.C. denies re-entering the house at all.

[ 6 ] Although the allegations arose on June 14, 2014, the information was not sworn until October 6, 2014, and D.C. was not arrested until November 13, 2014. During that time, she was not subject to any court order. Neither was she charged with any other offence. She was held in custody overnight. [ 7 ] On November 14, 2014, she appeared in front of me, represented by counsel, and was released by consent on a supervised undertaking with multiple conditions, including a condition that she not attend at the residence in question, and that she refrain from contacting no fewer than 13 people.

Because it was a consent release, I heard none of the allegations and was told nothing of D.C.’s personal circumstances. Given that she has no criminal record, that she had not offended in the five months since the alleged offence, that she comes from a stable home, that she attends school regularly, and that her alleged involvement in the offence was minor, it is doubtful whether the Crown could have shown cause that she not be released unconditionally. [ 8 ] On November 26, less than two weeks later, I heard the trial of another teen charged in the same incident.

I learned that long before D.C. was first arrested, the complainants had moved from the residence in question. Furthermore, one of the persons named in the no-contact order had passed away in August. [ 9 ] The whole incident arose out of a dispute between the main Crown witness -- also with the initials D.C. -- and her mother, who lived at the residence. The scheme to break into the house was concocted between this Crown witness and F.R.

G.B. assisted by breaking down the door. [ 10 ] In that trial, I expressed serious concerns with the credibility of the Crown witness who alleges that D.C. went back into the house. [ 11 ] D.C.’s trial on this information is set for April 14, 2015, less than four weeks after her bail hearing. b. December 21, 2014 [ 12 ] D.C. stands charged by

summary conviction that she did: 1. Commit theft of a motor vehicle, the property of Kevin Nelson, contrary to

section 333.1(1) of the Criminal Code . 2. Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, have no contact, except through legal counsel, with the following persons: [K.M., F.R., G.B., J.D., J.B.], Vivian Badger, Amanda Constant, Leo Felix, Jeffery Bighead, [L.K., D.C., J.B. and T.B.] except for [ sic ] fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code . [ 13 ] D.C.’s trial on these charges is set for April 13, 2015. The allegations are as follows.

J.D. took her parents’ vehicle without their consent. They complained to the police. When the police found the vehicle, D.C. was in the passenger seat. J.D. was one of the many people D.C. was not to have contact with, as they are co-accused on the same information. J.D. is not alleged to be a victim of the underlying offence. Neither could she be a Crown witness. Rather, she is alleged to be another minor player in the events of June 14. Regarding the cogency of the theft charge, I heard no evidence that D.C. was with J.D. when she drove the vehicle away from her parents’ residence.

I heard no evidence that D.C. had any knowledge that J.D. did not have her parents’ permission to drive the vehicle. [ 14 ] In my humble opinion, the offence committed, if any, was a joyriding contrary to s. 335 of the Criminal Code , a straight

summary conviction offence. But for the outstanding charges and the fact that D.C. was on an undertaking, it is the kind of offence often diverted through alternative measures. Nevertheless, D.C. was again arrested and held in custody overnight. [ 15 ] D.C. appeared before this Court on December 22, 2014, and was released on an undertaking with essentially the same conditions.

c. January 6, 2015 [ 16 ] On this date, D.C. stands charged by indictment with three counts of breaching her undertaking. It is alleged that she was out after her curfew, that she did not refrain from the use, possession or consumption of alcohol or drugs, and that she had contact with J.D., one of the many people named in the no contact order. Again, J.D. was not alleged to be a victim of or witness to any offence, but she was also charged in the June 14 incident. [ 17 ] The Crown alleges that at around 3:00 a.m. they received a complaint of an intoxicated male at the 7-11.

He was gone by the time they arrived, but the officer saw some kids “fleeing”. The officer caught J.D., who at first gave a false name. She eventually gave her correct name. She then told the officer that D.C. was there, too. The officer found D.C. in a vehicle. [ 18 ] Again, D.C. was arrested, held in custody overnight, and brought before the Court the next day. She was released on an undertaking with conditions. d. January 12, 2015 [ 19 ] D.C. is charged by indictment that she once again failed to abide by her curfew. The police went to D.C.’s residence to see if she was abiding by her curfew.

Her mother answered the door and told the police that D.C. had left at about 8:30 p.m. and had not yet returned home. A warrant was issued for her arrest, but was called back when she appeared in Court on her other charges later that same day. e. January 15, 2015 [ 20 ] D.C. faces two charges by indictment that she breached her undertaking by having contact with J.D. and that she was out after her curfew. D.C. came to the attention of the police while at the Victoria Hospital seeking treatment. She and J.D. were the victims of an assault with bear spray.

She was out walking with J.D. when an unknown male sprayed them. She says she was out past her curfew because she wanted to “hang out with her friends.” [ 21 ] Once again, D.C. was arrested and held in custody. She was brought to Court on January 16, and then remanded to January 19. Pursuant so s. 33(1) of the Youth Criminal Justice Act , she was released to the care of a responsible person, her mother, with more onerous conditions than her previous release documents. Her curfew was shortened to 7:00 p.m.

Additionally, she was required to keep the peace and be of good behaviour, and to report to Court when required to do so by the Court. Furthermore, she was not allowed to possess any weapons, even though she came to police attention as the result of being the victim of an assault. She was now required to take treatment for alcohol or drug abuse. She was not allowed to have a Facebook account or to have any electronic communication with the 13 people named in the order, including the deceased person. Her mother was required to contact the police if D.C. was in breach of any of these conditions. f.

January 23, 2015 [ 22 ] D.C. faces two counts, by

summary conviction, of breaching her undertaking to a responsible person by failing to abide by her curfew and failing to keep the peace and be of good behaviour, contrary to s. 139(1) of the Youth Criminal Justice Act . At 7:29 p.m. when the police did a curfew check, D.C. was not home, and her grandmother did not know where she was. It is unclear what action founds the allegation that she failed to “keep the peace and be of good behaviour.” There was no evidence that she breached the peace.

As she was not present, there is no evidence of her behaviour, whether good or bad. [ 23 ] She was arrested without warrant on January 28 and an information was sworn the next day. Again she was held in custody and appeared before the Court on January 29. She was further remanded to February 2 and released to the care of her mother with all but three of her previous conditions.

g. February 6, 2015 [ 24 ] D.C.’s mother called the police to report that D.C. walked out the front door in breach of her curfew. A warrant for her arrest was issued February 10 and executed February 24. She was brought before the Court on February 25 and remanded to March 2, when she was again released on an undertaking to a responsible person with the same conditions. h. March 12, 2015 [ 25 ] The Crown has yet to elect on this information. On this date, D.C. is charged that she did: 1. Resist Cst. Polowski, a peace officer engaged in the lawful execution of her duty by trying to flee during a lawful arrest, contrary to

section 129 (

a) of the Criminal Code . 2. Being at large on her undertaking entered into under section 31(3) of the Youth Criminal Justice Act and being bound to comply with a condition thereof, to wit: abide by a curfew of 7:00 p.m. to 7:00 a.m. daily and must remain in the approved residence during the said hours, except as allowed by the judicial interim release worker or in the presence of her mother D.H., fail without lawful excuse to comply with that condition, contrary to s. 139(1) of the Youth Criminal Justice Act . 3.

Being at large on her undertaking entered into under section 31(3) of the Youth Criminal Justice Act and being bound to comply with a condition thereof, to wit: refrain from the use, possession or consumption of beverage alcohol as defined by The Alcohol and Gaming Regulations Act, 1997 , and/or any drugs except as prescribed for her by a medical doctor and where so prescribed, take only as prescribed, fail without lawful excuse to comply with that condition, contrary to section 139(1) of the Youth Criminal Justice Act . [ 26 ] At 11:57 p.m., D.C.’s mother – as required – called the police.

She said that D.C. took her vehicle without her consent. The police found the car in a no parking zone at the 7-11. D.C. was driving it. The officer placed her under arrest for breaching her undertaking and held onto her arm. D.C. pushed her away and tried to flee. The officer scooped her up around the shoulders and placed her in the police vehicle. (I note that D.C. is a small person, even for her young age.) It is alleged that a meth pipe with residue was found in D.C.’s jacket pocket. [ 27 ] She was arrested and brought before the Court the next day.

She was remanded in custody until her bail hearing on March 18. I released her on March 20. She has now spent 27 days in pre-trial custody, though she has not been found guilty of any offence. POSITION OF CROWN AND DEFENCE: [ 28 ] Counsel for the Crown points out that this is D.C.’s fifth show cause hearing this year alone. At her last hearing, the presiding judge warned her that it was her last chance for release. It is clear that she is not respecting her conditions, even when subject to a section 31(3) undertaking.

While D.C.’s mother has been reporting her breaches, as required, she does not know how to control her. The Crown submits that there is a clear concern D.C. will commit further offences if released. She has no respect for the justice system. She had many chances for interim release, and breached them all within a short period of time. This also raises a concern that she will not show up for Court. [ 29 ] Defence submits that the likelihood of conviction on the underlying substantive offences is low.

He points out that, although the most serious offence is alleged to have occurred in June, D.C. was not arrested on the charges until November, some five months after the events. He reports that the judge at the last bail hearing expressed concern about detaining someone in custody when there were triable issues and when the accused is probably not looking at a custodial sentence even if she were to be found guilty.

Similarly, on the s. 333.1 charge, he says a finding of guilt would be “a stretch”. [ 30 ] He acknowledges that D.C. is having difficulty complying with her release conditions, but she wants to do better. Her mother is willing to take her back, and D.C. is willing to accompany her mother when she is required to work in the evenings. He points out that D.C. has been attending school regularly, and is working above her age level. D.C. has no criminal record, yet has already spent 27 days in custody without any finding of guilt.

If she were found guilty of all of the offences before the Court, she would likely be facing a non-

custodial sentence. ISSUES: [ 31 ] There are two main issues here: 1. Pursuant to subsection 515(1), should D.C. be released on the new information? 2. Pursuant to subsection 524(8), should D.C.’s previous release document be cancelled? If so, should she be remanded in custody or released anew on those charges? If so, on what, if any, conditions? LAW: [ 32 ] One instinctively wants to teach D.C. a lesson about respecting court orders. However, one must respect and apply the principles underlying the Youth Criminal Justice Act and the rules regarding judicial interim release of a young person. [ 33 ] Both the Youth Criminal Justice Act and

Part XVI of the Criminal Code govern the detention and release of young persons. The relevant sections are attached as Appendix A to this judgment. [ 34 ] Judge Gorman of the Newfoundland and Labrador Provincial Court sums up the principles and issues to be addressed in a bail and revocation hearing nicely. Quoting from R v C. (D.) , [2014] 1097 APR 340 at paragraph 17 : In B. (R.L.) , I noted that since there “are no reverse onus provisions in the Youth Criminal Justice Act , section 515(6) of the Criminal Code does not apply to a young person charged with a criminal offence.” In R. v. B. (S.) , [2014] N.J.

No. 161 (N.L. Prov. Ct.) , I concluded that this “does not mean that section 524(8) [cancelling of release document and remand on grounds of contravention of a release condition] of the Criminal Code does not apply to a young person charged with a criminal offence who was bound by, for instance, an undertaking. Rather, it means that when this

section is applied to a young person the onus remains with the Crown. Thus, if a young person is charged with the offence of breach of undertaking (as here) a justice may cancel the undertaking and remand the young person into custody if the Crown can establish that the young person’s detention is necessary pursuant to the grounds set out in

section 29 of the Youth Criminal Justice Act . [ 35 ] It is not obvious to me that subsections 524(8) and (9) apply to youths.

Section 28 of the Youth Criminal Justice Act says that

Part XVI of the Criminal Code applies to young persons “except to the extent that they are inconsistent with or excluded by this Act .” Without re-wording it entirely, it is difficult to apply s. 524(8) and (9) in the context of a Crown onus hearing, given its mandatory language and reverse onus context. However, the bail hearing proceeded before me on the assumption that I have the power to revoke previous release.

I will therefore assume, without deciding, that s. 524(8) applies, with the onus remaining on the Crown. [ 36 ] Later, at paragraph 25, Judge Gorman provides this pithy synopsis: In B. (S.), I summarized the judicial interim release provisions contained within the Youth Criminal Justice Act in the following manner (at paragraph 28): 1. the provisions of

Part XVI of the Criminal Code apply except to the extent that they are inconsistent with or excluded by the Youth Criminal Justice Act . Sections 515(1) (

a) to (

c) of the Criminal Code [grounds for detention] are inconsistent with the judicial interim release provisions contained within the Youth Criminal Justice Act and thus they are inapplicable to young persons (see

section 28); 2. judicial interim release can only be denied to a young person who is charged with (1) a “serious offence” [defined as an indictable offence for which the maximum punishment for an adult is 5 years or more] or (2) a young person who has a “history” which indicates a “pattern” of outstanding charges or findings of guilt (see section 29(2)(a)); 3. if either prerequisite is established, the denial of bail to a young person requires a finding, on a balance of probabilities, that: i. there is a “substantial likelihood” that the young person will not appear in court (see section 29(2)(b)(i)); or

ii. the young person’s detention is necessary for the “protection of the public” (see section 29(2)(b)(ii)); 4. if the young person is charged with a “serious offence” and detention is not justified pursuant to either section 29(2)(b)(

i) or (ii), detention can be ordered if there are “exceptional circumstances” which warrant the need for detention to maintain confidence in the administration of justice considering: a. the apparent strength of the Crown’s case; b. the gravity of the offence; c. the circumstances of the offence (including whether a firearm was used); and d. the potential for a lengthy custodial sentence to be imposed (see section 29(2)(b)(iii)); 5. the onus of establishing that bail should be denied rests with the Crown.

There are no reverse onus provisions in the Youth Criminal Justice Act and thus section 515(6) of the Criminal Code does not apply to a young person charged with a criminal offence (see section 29(3) ), though section 524(8) does apply, with the exception that the onus rests with the Crown; 6. if one of these three categories is established, judicial interim release is only to be denied if the judge is satisfied that the imposition of release conditions would fail to sufficiently alleviate the grounds for denial of release (see section 29(2)(c)); 7. the denial of judicial interim release is not to be used as a substitute for appropriate child protection, mental health or other social measures (see section 29(1)); and 8. if the judge concludes that judicial interim release should be denied, she or he must consider whether the young person could be placed in the care of a “responsible person” (see

section 31). [ 37 ] I would add that all decisions under the Youth Criminal Justice Act must be made with the

Preamble and the Declaration of Principle in mind. The

Preamble includes the following: WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights , and have special guarantees of their rights and freedoms; ...

AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. [ 38 ] Furthermore,

section 3 of the Act includes the following: (

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences. (

d) special considerations apply in respect of proceedings against young persons and, in particular, (

i) young persons have rights and freedoms in their own right, ... and young persons have special guarantees of their rights and freedoms.

[ 39 ] Those guaranteed rights include freedom of association, the presumption of innocence and the right to reasonable bail. ANALYSIS: [ 40 ] D.C. does not dispute that she has breached the conditions of her previous release document. Thus, pursuant to s. 524(8) of the Criminal Code (assuming it applies), it is open to this Court to revoke her release on the outstanding charges and, if the Crown shows cause, either remand her in custody or release her on either an undertaking or recognizance or, if necessary, on an undertaking to a responsible person.

On the new charges, the hearing is pursuant to s. 515(1) of the Code . Thus, the Crown must show cause why D.C. should not be released unconditionally. Any conditions imposed must have the purpose of reducing her risk of not attending Court, her risk to public safety, or maintaining confidence in the administration of justice. That is, they must be necessary and relate only to the grounds for detention.

They are not meant to substitute for appropriate child protection, mental health or other social measures. [ 41 ] Under s. 29(2)(a), D.C. meets the first prerequisite to detention in that the June 2014 charges all meet the definition of “serious offence”. Furthermore, she now has a history that indicates a pattern of outstanding charges. I do note that when she came before the Court in December, charged with s. 333.1 and s. 145(3) by

summary conviction, on those charges she did not meet either precondition for detention. [ 42 ] Next, the Crown must prove at least one of the grounds for detention on a balance of probabilities. I shall deal with each of these in turn. Only if I am satisfied that a ground for detention is made out do I then turn to subsection 29(2)(

c) and decide what if any conditions may reduce the risk posed. 1. Primary Ground [ 43 ] The Crown submits that, because D.C. has shown a flagrant disregard for her court ordered conditions, there is a “concern” that she will not show up for her trial. However, on the rare occasion D.C. has been given the opportunity to appear in Court when she has not been in custody, she did appear always accompanied by a parent or other responsible adult. She is represented by counsel. She has no criminal record, and no history of failing to appear in Court. She attends school regularly.

I have no reason to believe she will not attend at her trial. The Crown has not shown cause on this ground why D.C. should be detained in custody or why any conditions should be imposed on her. [ 44 ] Often counsel will ask for a condition that the accused “appear before the Court when required to do so by the Court,” which is a statutory term in both adult and youth probation orders. (There are, of course, no statutory terms for judicial interim release.) However, I find that this condition is redundant. As in all forms of release, the primary purpose is to compel attendance in Court.

Part XVI of the Criminal Code is titled “Compelling Appearance of Accused Before a Justice and Interim Release.” All undertakings contain this sentence: “In order that I may be released from custody, I undertake to attend Court on ____ day, the ___ day of _____ A.D. ____, and to attend after that as required by the Court in order to be dealt with according to law.” There is similar wording in all recognizances. The document itself compels attendance at Court. See, for example, Form 12 and Form 32.

There is no need for a further optional condition, also requiring the accused to attend Court when required to do so by the Court. [2] 2. Secondary Ground [ 45 ] The Crown is most concerned on the secondary ground, given that D.C. seems to be out of control, staying out late at night and associating with her friend J.D. in contravention of her undertaking. She ignores court orders and so no combination of conditions can reduce her risk of committing further offences.

Defence points out that she committed no offences in the five months before she was charged with the June offences, that her likelihood of conviction on any of the substantive offences is very low, and that all her other offences are simply breaches. In short, she is not a danger to the public. [ 46 ] Under s. 29(2)(b)(ii), the Crown must show that detention (or any condition) is “necessary” for the “protection or safety of the public, including any victim of or witness to the offence.” The only offence before me which raises concerns on this ground is the original break and enter incident.

If D.C. were to be in the company of the ringleaders of that incident, there is a real concern that she may again be caught up in an offence serious enough to threaten public safety, though it is not likely that she would initiate it. Similarly, Crown witnesses have a right to be kept apart from those accused of crimes until they have given their testimony in Court. However,

although D.C. has breached her conditions on several occasions, there is no allegation that she has contacted the alleged victims or otherwise attempted to interfere with the administration of justice. She’s basically hanging out late at night with her friends, who are not the ringleaders of the original offence. The ringleaders are F.R., G.B., and D.C. (a Crown witness who unfortunately shares the same initials as the accused in this case). [ 47 ] D.C.’s behaviour does present a risk to herself.

It is not particularly safe for a young girl to be wandering around the streets of Prince Albert late at night, particularly if she is drinking or doing drugs. On one occasion, she came to the attention of police because she was a victim of assault. However, this does not translate into a risk to public safety. This is the very situation s. 29(1) was designed to prevent. Detention under the Youth Criminal Justice Act is not to be used as a substitute for appropriate child protection, mental health or other social measures.

If she has an alcohol or drug addiction that puts her own safety at risk, there are mechanisms under provincial legislation to address that. Perhaps a Youth Detox order is required. Similarly, if there is parent-teen conflict, or her behaviour puts her in need of protection, there is provincial child protection legislation to address those concerns. But unless she is a danger to the public, which she is not, she may not be remanded in custody on the secondary ground because those behaviours happen to contravene an undertaking.

While it may be comforting for a parent to know they can simply telephone the police when their child’s behaviour is worrisome, it is not the role of the Court to enforce parental rules when the child has not been found guilty of an offence and is not a danger to the public. [ 48 ] In assessing the risk to public safety, I must consider under s. 29(2)(b)(ii) whether the Crown has shown that there is a “substantial likelihood that the young person will, if released from custody, commit a serious offence.” “Serious offence” is defined in the Youth Criminal Justice Act as “an indictable offence under

an Act of Parliament for which the maximum punishment is imprisonment for five years or more.” While it seems D.C. has committed offences since her initial release, none of them meet the definition of “serious offence”. A breach of undertaking, even on indictment, carries a maximum of two years for an adult. Thus, although there is a substantial risk of her committing a breach of undertaking if released, that is not enough to detain her on the secondary ground. [ 49 ] Similarly, none of the other offences before this Court qualify as a “serious offence”. She is charged under s. 333.1 of the Criminal Code , but the Crown proceeded by

summary conviction. Even if the Crown had proceeded by indictment, on the facts as I heard them, the substance of the offence is at best joyriding contrary to s. 335 of the Criminal Code , a straight

summary conviction offence. Similarly, an offence contrary to s. 129 (

a) of the Criminal Code carries a maximum of two years on indictment for an adult. [ 50 ] Even if I were to find a “substantial likelihood” of committing a serious offence, I would also have to find that it creates an unacceptable risk to public safety. Vancise J.A. in R v Tabor, 2003 SKCA 59 , in an adult context, states as follows: The principal issue is whether the appellant’s detention is necessary for the protection or safety of the public. The Supreme Court of Canada held in R. v. Morales that the detention of an accused under s. 510(10)(

b) was justified only for those who pose a “substantial likelihood” of committing an offence or of interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public.” [ 51 ] In the five months between the original offence and D.C.’s arrest, she was not subject to any court conditions, yet, mysteriously, she is not alleged to have committed a serious offence in the interim. Neither is she alleged to have committed a “serious offence” since June of 2014. I can only conclude that the risk on this ground is minimal. 3.

Tertiary Ground [ 52 ] Although neither counsel included this ground in their submissions, I raised it with defence during the course of the bail hearing. On its face, it seems to me that releasing a person who continually flaunts court orders must bring the administration of justice into disrepute. However, upon a closer reading of the subsection it is readily apparent that D.C. cannot be remanded on this ground. None of her breaches are “serious offences,” which is a prerequisite to applying this subsection. As well, none of the enumerated factors apply in this case. 4.

Reasonable Conditions [ 53 ] Having found that the only concerns raised relate to the secondary ground, and having found that the Crown has failed to justify D.C.’s detention, I now turn to s. 29(2)(c)(ii) of the Youth Criminal Justice Act to decide what conditions, if any, would offer adequate protection to the public from the risk that the young person might otherwise present.

[ 54 ] Often counsel will ask for a condition that the accused “keep the peace and be of good behaviour.” This is a statutory term in probation orders, where a youth has been found guilty of an offence. It is not a statutory term in any release document. It is not even one of the suggested conditions in s. 515(4) of the Criminal Code . Bail is not pre-trial sentencing, and the condition is inappropriate where the presumption of innocence still applies.

It is not a “reasonable condition” within the meaning of s. 515(4) of the Criminal Code . [3] For the reasons stated by Judge Harradence in R v B. (A.D.) , 2009 SKPC 120 , adopted by Moir J. in R v Doncaster , 2013 NSSC 328 , I decline to impose this condition. [ 55 ] If D.C. were to have contact with F.R., D.C. (the Crown witness), or G.B., there is a danger that she could get involved in a further serious offence. However, since being released on her original undertaking, there is no allegation that she has had contact with any of these people.

Similarly, if she were to have contact with the alleged victims of the offences, there is some risk that she might be tempted to interfere with the administration of justice. I do note that one of the alleged victims passed away in August of 2014, some three months before D.C. was first arrested. There is no need for him to be named in a no contact clause.

As well, the alleged victims no longer live at the address in question, so there is no need for a condition that D.C. not attend at that address. [ 56 ] In short, I find only one condition justified under the grounds for detention, that D.C. have no contact, direct or indirect, except through legal counsel, with the following persons: D.C., Vivian Badger, Amanda Constant, F.R. or G.B.

SUMMARY: [ 57 ] Before the Court is a girl who just turned 15 years old. She was 14 at the time of the offences alleged against her. She has no criminal record. The original allegations as a whole are serious, but D.C. herself is not alleged to have done anything violent. The likelihood of a finding of guilt is tenuous. Even if the Crown can prove that she was a party to the offences, her degree of participation in those offences is minimal.

Even so, and even though D.C. comes from a stable home and attends school regularly, even though in the five months before her arrest she was not charged with any offences, she was released by consent on a document that looked much like a probation order. Her multiple conditions put her under the supervision of a youth worker and greatly restricted her liberty and freedom of association. I am sad to say that I am the judge that released her on those conditions. She was represented by counsel and both Crown and defence consented to the conditions. No facts were heard.

Neither were any of D.C.’s personal circumstances put before the Court. Two of the conditions were already irrelevant. The alleged victims no longer lived at the address she was not to attend, and one of the people named in the no contact condition was already deceased. Many of the others named also had minimal involvement in the offences.

This case serves as a reminder that when young persons are released by consent, the Court has an obligation to ensure that any conditions imposed are reasonable and that they are necessary to reduce the risk of missing Court or to public safety. [ 58 ] D.C.’s only other substantive charge is a theft of a motor vehicle. The likelihood of proving the charge as laid is tentative.

At the show cause hearing, I heard no evidence upon which I could infer that D.C. knew her co-accused had no permission to take her parents’ vehicle. [ 59 ] Despite the weakness in the Crown’s case, D.C. was again released on multiple conditions. It is unclear what grounds for detention those conditions were designed to address. Under

Part XVI of the Criminal Code , and especially under the Youth Criminal Justice Act , no condition should be imposed on an accused, who is presumed innocent, unless it is necessary to ensure attendance in Court or to reduce the risk to public safety – including the risk of committing a serious offence – to an acceptable level. Bail conditions are not to replace parenting. Parents may impose rules on their children to give them structure, etc. Court conditions should be used sparingly, and only if, but for that condition, the accused would have to be remanded in custody.

It is not pre-trial sentencing. [ 60 ] Conditions on judicial interim release must relate to the particular offence and the grounds of detention. Their purpose is not to ensure general good conduct, but to ensure attendance in Court, protection of the public, and the integrity of the trial process. We must take care not to criminalize normal adolescent behaviour. It is normal for teens to test the boundaries of parental authority. It is normal for teens to associate with their peers.

If D.C. has addictions that put her own safety at risk, a Youth Detox order may be warranted or Social Services might apprehend, but detention under the Youth Criminal Justice Act cannot substitute for these measures. [ 61 ] For all of these reasons, D.C.’s previous release documents are revoked. She shall be released upon entering into a new undertaking with the condition that she have no contact with those named individuals. [ 62 ] Dated this 13 th day of April, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan.

_____________________________ F. M. Daunt, J APPENDIX A Youth Criminal Justice Act

28. Except to the extent that they are inconsistent with or excluded by this Act , the provisions of

Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act . 29.

(1) A youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures.

(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.

(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General. Criminal Code 515.

(1) Subject to this section, where an accused who is charged with an offence... is taken before a justice, the justice shall ... order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this

section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice. 524.

(8) Where an accused ... is taken before the justice and the justice finds (

a) that the accused has contravened ... his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance

notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detainedin custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is notjustified within the meaning of subsection 515(1).

(9) Where the accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), the justiceshall order that the accused be released upon his giving an undertaking or entering into a recognizance described in any of paragraphs515(2)(

a) to (

e) with such conditions, described in subsection 515(4), as the justice considers desirable. ...

(11) Where the justice does not make a finding under paragraph (8)(

a) or (b), he shall order that the accused be released from custody. [2] The reason for the term in probation orders is to allow the Court to supervise the probationer. Usually this supervisory role isdelegated to a probation officer. It is rare but not unheard of that a judge will actually require a probationer to attend Court aftersentencing. As the charge is no longer pending before the Court, a term of the probation order requiring attendance in Court is the onlyauthority whereby an accused may be compelled to Court. Not so with judicial interim release documents.

An accused brought beforethe Court is bound by the jurisdiction of the Court, whether or not there is valid process. He or she must appear on any adjourned date orrisk a warrant for arrest and a charge under s. 145(2)(

b) of the Criminal Code. [Lowe v Azzopardi, (SK CA), [1976] 3WWR 377 (SKCA)]