R. v. B.-S.(T.), 2013 ONCJ 98

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code . This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 517. Order directing matters not to be published for specified period. —

(1) If the prosecutor or the accused intends to show cause under

section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (

a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (

b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on

summary conviction. Citation: R. v. B.-S.(T.) , 2013 ONCJ 98 R. v. T. B.-S.

B. Hundal J.P. Heard: February 22, 2013. Judgment: February 25, 2013 (57 paras.) Charge: A young person within the meaning of the Youth Criminal Justice Act did unlawfully kill another young person and thereby committed manslaughter, contrary to the Criminal Code . Counsel: For the Crown: Ms Rochelle Direnfeld . For the Defendant: Mr. Nicholas Charitsis REASONS FOR JUDGMENT B.Hundal J.P.:-- A. The Charges: 1 . Mr T. B.-S. is a young person charged with the offence of Manslaughter and the charge is that on February 11, 2013 he unlawfully killed a young person Mr. S-A. R. 2 .

Section 236 of the Criminal Code provides as follows: Every person who commits manslaughter is guilty of an indictable offence and liable (

a) Where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) In any other case, to imprisonment for life. B. Background: 3 . He was 17 years old at the time of the offence. He resides with his mother and sister. C. Record: 4 . He has Youth Court Justice Act (Y.C.J.A.) findings of guilt and a youth court record. I was told that On April 11, 2011 the accused was arrested for the offence of possession for the purpose of trafficking from the same Turf Grassway housing complex where the current offence is alleged to have taken place. He was found to have three separate bags of cocaine on him.

He was released on an undertaking with condition not to carry non-medically prescribed drugs. 5 . On June 10, 2011 he was again arrested on drug charges and released to his mother on a $1000.00 bail with conditions not to carry any non-medically prescribed drugs, not to attend Turf Grassway housing complex, not to be away from his place of residence from 7.00pm to 6.00am and not to contact T.M.. 6 . On July 27, 2011 he was once again arrested for failure to comply with bail conditions x3, FTC undertaking, possession of cocaine and possession of cocaine for the purpose of trafficking.

On July 29, 2011 he was released on a global bail in the amount of $1500.00 to his grandfather with almost similar conditions. 7 . On August 31, 2011 he plead guilty to the charge of possession of cocaine for the purpose of trafficking, for which he received a conditional discharge. He also plead guilty to one count of failure to comply recognizance of bail and possession of cocaine charges for

which he received 12 months probation. Since August 2011, he has stayed away from any problems. D. Allegations: 8 . It is alleged that on February 11, 2013 approximately 10.30pm, the sister of the deceased called 911 and reported a shooting at 40 Turf Grassway, Unit #304 in the city of Toronto, the residence of the deceased. Police arrived and witnessed the accused, another young person named O.K. and an adult T.M. running in the stairways of the building. During the investigation they indicated to police that they had been smoking marihuana on top of the roof.

A further investigation disproved those facts as the Police did not find any fresh steps on the snow covered roof. Police also found the body of the deceased on the landing of the stairs in Unit #304. A shell casting and a bullet was also found in the bedroom of the deceased. 9 . Swabs were taken from the hands of the three accused for gunshot residue and submitted to the lab for testing. Test results were positive on the hands of the accused before the court. However, from the report it is not conclusive that in this case, the accused person was the shooter.

The police are still waiting the test results for the other two persons. 10 . Autopsy results indicated that the cause of the death was gun shot. A gun was recovered from the unit but it is still unknown if this was the firearm used during the offence. Drugs and cash were also found in the bedrooms. The sister of the deceased advised the police that she saw her brother and the accused together around 4.30pm on the same day. O.K. and T.M. were initially charged with discharging a firearm but charges were later dropped by the police.

At this point of the investigation, there is no witness to the offence and the police investigation is ongoing. E. Onus: 11 . As per section 29(3) of the Y.C.J.A., the onus is on the crown to show cause as to why detention is justified on a balance of probabilities. F. Evidence: 12 . First proposed surety J.S., who is the grandmother of the accused, testified that she is Canadian Citizen with no criminal record. She has never been a surety before but understands the role and responsibilities of a surety. She resides with her son, M.S. at H[…] Cres in the city of Toronto.

She owns this property with her son and they have over $100,000.00 equity in this property. She is self-employed and, with the help of her son M.S., is available to supervise her grandson 24 hours daily. 13 . She proposed complete house arrest where he will be in the direct company and supervision of either herself or her son M.S.. Either she or her son will take him to any appointments or court appearances. She would not allow the accused to go anywhere without herself or her son M.S. being present. She won’t even allow the accused to go out with her daughter, who is his mother.

She said that she is a no nonsense person and therefore will supervise and control him effectively. He will listen to her and she won’t hesitate to call the police if needed. 14 . She further testified that she doesn’t know any of the other people mentioned in this case, but she will ask if she sees any strangers around him. She also doesn’t know the family of the deceased. She has no weapons at her place. She is fully aware of his previous charges and other problems. She said that she has discussed his previous charges with him in the past and he listened to her.

She also said that he is good in school, especially in the arts. She further said that he has been out of trouble since August 2011. 15 . Second proposed surety M.S., who is the son of the first proposed surety and uncle of the accused, testified that he is 39 years old and doesn’t have a criminal record. He also has not been a surety in the past, however, does understand the role of a surety. He lives with his mother in the house they both co-own. He is employed as a general labourer and works Monday to Friday from 7.30 to 4.30pm.

He testified that he comes home straight from work except twice a week, when he visits his daughter. He rides the TTC as he doesn’t have a driver’s licence. As a result, he is home most of the time and rarely goes out with friends. 16 . Like his mother, he proposed that if the accused is released, he will reside with him and his mother, and will be in the direct

company of either one 24 hours daily. He testified that in last few months he has not spoken regularly to his nephew because he didn’t have his cell phone number. He has, however, been talking to his sister on a regular basis and asking about him. 17 . He also pledged to sign for $100,000.00 bail with house arrest and a no contact condition with O.K. and T.M., the deceased family or any other conditions as required by the court. He doesn’t have any drugs or weapons at his house. He understands that he will lose $100.000.00, which is his hard earned money, if there is a breach of bail conditions.

He said that he doesn’t remember his nephew’s previous charges but is confident that he will listen to him. He has told him to make better choices and he thinks he is a better person now who is trying to change his life. He further said that he was not involved with supervision in the past. He will be a tough supervisor as he is a no nonsense person. During cross examination, he admitted that although he was not fully aware of his nephew’s past charges until now, he still wants to be a surety. G. Submission by Crown Ms. Rochelle Direnfeld: 18 .

She submitted that she takes no issue on primary grounds but is seeking his detention on secondary and tertiary grounds. As per section 29(2) of YCJA manslaughter is a serious offence and detention is necessary for the safety of the public and the victim’s family. She said that based on his past behaviour; there is a substantial likelihood that if released, he will commit a serious offence again. 19 . She said that in June 2011, he was found trafficking cocaine at the same place where the current offence occurred. He was again arrested shortly thereafter while on an undertaking.

He was released to his mother then with the condition not to contact T.M., the very same person he was with when this current offence occurred. There is a relation between drugs and guns. A gun was involved in this offence. Even though there is no evidence of who shot the firearm, but given the fact there was a gun in the vicinity, he could have done it. 20 . She further submitted that though the proposed sureties mean their very best this young person won’t listen to them. There is no pattern that these sureties ever had any control on him. He has been signing and breaching bails in the past.

Therefore, she submits that he will commit another serious offence if released. 21 . She further submitted that on the tertiary grounds there are exceptional circumstances warranting his detention. A gun was used and a person was killed. The Crown’s case is strong and he was trying to flee from the scene. There is evidence of gunshot residue on his hand which puts him in the close proximity to a gun. If convicted for this offence, he will be facing a lengthy custodial sentence. 22 .

She submitted that on a balance of probabilities, there are no conditions that will keep the public safe and as a result, the public will only lose confidence in the justice system due to his track record that is against him. She is also concerned that if released, he will be living close to the place of offence. She submitted that the crown has proved on a balance of probabilities that he should be detained. H. Submissions by Defense Counsel Mr. Charitsis: 23 .

He submitted that the problem with the Crown’s case is that it is speculative; there are no witnesses and no admission by his client that he was in possession of a firearm. Furthermore, there is no proof which firearm was used and the other accused involved has been released on consent bail even when he was already on a bail. 24 . He said that the Crown’s submissions really go to his past troubles, yet only one of his previous breaches was proven.

He said it is not uncommon for young people to recommit offences time and again; but his client was not on any condition telling him not to be at Turf Grassway housing complex. He also said the area is where he has grown up and where his friends live. The deceased in this case was one such friend. 25 . He further submitted that the Crown doesn’t know anything other than that after the 911 call to the police, his client was running away. He said sure gunshot residue is found on his clients hand; however the gunshot residue report is not conclusive. Gunshot residue could be found on other people’s hands too.

Defense has proposed the best plan with $100,000.00 bail and complete house arrest. He said that the public won’t be outraised once it is known that he is released on a $100,000.00 bail with house arrest.

26 . On secondary grounds, he said that his client is settling down in his life and he has been out of trouble for a long period. Place of offence is at least two buses away from his proposed residence and he won’t be allowed to leave his house anyway. He will always be in the direct company of the sureties 24 Hours a day. The sureties are going to do their best as $100,000.00 of their hard earned money is on the line. 27 . He further submitted that the Crown’s case is weak, even though a death is involved; the charge is still only manslaughter.

The Crown is depending on his past behaviour in spite of him being problem free for a year. He said because of the serious amount of money and strong sureties, bail can be fashioned. He further submitted that police officers are still investigating this matter and there will be miscarriage of Justice if he is detained. J. Judicial Interim Release Provision Contained Within The Y.C.J.A.: 28 . Section 29(2) of the Y.C.J.A. sets out the grounds upon which on a balance of probabilities judicial interim release can be denied to a young person and these are: (

a) The Primary Ground; Section 29(2) (b) (i) - The court must be satisfied that “there is a substantial likelihood” that the young person will not appear in court when required to do so. Let me say that there is no issue before the court on primary grounds in this case at bar. (

b) The Secondary Ground; Section 29(2) (b) (ii) - Under this

section the Court may order that a young person be detained in custody only if; (

i) the young person has been charged with 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; and detention is necessary for the protection or safety of the public, including any victim 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, 29 .

As can be seen, the secondary ground under the Y.C.J.A. now does not require that the court consider whether the accused will interfere with the administration of justice. 30 . Defense counsel and the Crown both concede that charge of manslaughter fits within the definition of “serious Offence” as defined in the Y.C.J.A. and therefore court does have jurisdiction to order the detention of the accused on the secondary grounds. 31 . The Tertiary Ground;

Section 29(b)(iii)-This

section applies w here the young person has been charged with a serious offence and detention is not justified on either primary or the secondary grounds and 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. 32 . Further Requirements in regard to the Tertiary Ground; Section 29(2)(c) -Once the court is satisfied that one of either sections 29(2) (b)(i), (ii) "or" (iii) applies, then under this

section the Court must be satisfied, on a balance of probabilities that no condition or combination of conditions of release would-

(

i) reduce, to a level below substantial 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. K. Analysis: 33 . I am mindful of principals governing the treatment of young people under Y.C.J.A, whereby detention should be avoided in favour of rehabilitation and reintegration, and must be based on principle of diminished moral blameworthiness or culpability.

However, I find that such principals also require that young persons must be held accountable for their criminal activity. 34 . Under s. 11(

e) of the Charter of Rights and Freedoms, an accused has a constitutional right not to be denied a reasonable bail without just cause, and s. 7 of the Charter of Rights and freedoms affords to an accused the right not to be deprived of his liberty or security in accordance with the principals of fundamental justice. 35 .

I have to review and consider the evidence as presented during the bail hearing before me to determine if he should be released or not, and in making this assessment, I must consider all the circumstances of the accused and the strength of the plan of release proposed for his supervision, should he be released. As I mentioned above, under s 29(3) of Y.C.J.A. onus is always on the crown to show cause why detention is justified. 36 . My understanding is that before this bail hearing commenced, Madam Crown Ms.

Tanya Kranjc was seriously considering a consent release until new information came to light from one of the sureties being interviewed. This information was about his previous youth court findings of guilt, charges he has faced in the past, past breaches of his bail conditions, especially location of the previous offences being the same as the location of the current offence. Also the same person T.M. was involved in previous offences who is again involved in this case at bar. 37 .

One of the reasons for the Crown’s change of mind for a consent release seems to be that the proposed place of his residence is quite close to the place of current offence and that is the place where he has been charged in the past. Therefore, the Crown must have been concerned that he can easily get away to this place. The only other concern she could have had was his past association with T.M. who is again involved in these current allegations. 38 . The Crown is seeking his detention in light of these very serious charges and based on a strong Crown’s case.

In R v Blind (1999), a decision of the Saskatchewan Court of appeal, the court said: “In considering all relevant circumstances, the hearing judge must not be so focused on the gravity of the offence and the strength of the Crown’s case as to overlook the fact that there are no categories of offences for which bail is not a possibility. In many cases” the court continued, “an apparent strong crown case may unravel. Giving undue weight to the possibility of a lengthy prison term becomes a means to start punishment prior to conviction, which is improper”. 39 .

I am mindful of the concerns of the society in light of Gun violence where loved ones have lost their children as young as in this case at bar. When this incident happened it was mentioned and discussed in great deal all over the media. Public was once again very concerned with gun and gang violence. I should point out here that, there are no gang related concerns raised by the Crown in this case. Anytime a youth, or for that matter young children are able to get their hands on a Gun, it becomes a question of whether or not the public can have any confidence in the police and the justice system.

After hearing and reading the media stories in last few years, I must admit that public seems to be losing their confidence in the police and the justice system. I am sure that the media, family of the deceased and public at large must be very anxious to see the outcome of this bail hearing. 40 . Higher courts have said that the courts must be careful not to pander to public opinion. Glithero J. Observed in R v Stevenson,

(1998) O.J. No. 4390 (S.C.J.) at para 34 , “I would think it clear that bail should not be denied simply because it might be popular in the eyes of the public”. 41 . A s Justice Trotter in his authoritative text, The Law of Bail in Canada while discussing The Tertiary Ground on page 3-31 writes “The decisions in Re Powers and R. and R. v. Demyen illustrate that the public interest is a concept which contemplates the balancing of competing factors. It is important not to over-emphasize the potential breadth of the notion. Permitting the detention of an accused on

the basis of public interest was never intended to permit the Courts to react to public clamour or hysteria.” And on page 3-34 he furtherwrites “it is important to elaborate on the type of violence that might trigger public interest concerns. Ironically, a person who is chargedwith murdering a victim he or she knows in a “crime of passion, “as it were, is more likely to obtain release than person alleged to haveperpetrated the murder of an innocent stranger.

This may be justified on the premise that the release of an accused charged with themurder of a random victim may create greater fear and apprehension in the community. By definition, anyone is a potential victim of arandom killer”. 42. By mentioning the above, I am not trying to undermine the concerns of the public for these serious crimes. I myself find thatsomehow the public seems to be more concerned and fearful with news of random or gang related killings than killings of people by thepeople known to them.

It is my personal belief, that regardless of whether a victim is known to the killer or not, the mere fact that thereis a dead victim, the public should be concerned. It is important to note however, the justice system should not or cannot focus too muchon the concerns expressed by the public. The court, while presiding at trials and bail hearing, has an obligation not to get carried awayand/or swayed by the emotions of the public and must stay focused on the principles of the justice system. 43. In our judicial system incarceration is only imposed as punishment only after a person has been convicted.

As Rosenberg J.A. observed in R v McDonald (1998), 127 c.c.c.(3rd) 57 ( Ont, C.A,)at 77, “ In a free and democratic society accused persons are not deniedbail to punish them before their guilt has been determined”. 44. Although at bail hearing stage the evidence before me is in the form of allegations only, I must admit that these allegations are oneof the most serious ones as a young person has lost his life. Defense counsel has raised few triable issues. It is ultimately for the trialcourt to determine if the accused is guilty or innocent.

The function of the Bail Court is only to determine on a balance of probabilities ifdetention of the accused is justified on one or more of the grounds in S29 (2) of Y.C.J.A. 45. I am also aware that the police investigation is ongoing by the officers of the Toronto Police Force and to date there is no directwitness to this incident. After hearing the allegations, I find that the Crown to date is heavily relying on circumstantial evidence and forthis reason, the Crown’s case seems to be weak. I also find that the identification of the accused is going to be a triable issue. 46.

As I mentioned above, the case for the Crown is largely circumstantial. In the decision of R v Aldrich (BC SC),[1976] 6 W.W.R. 501 (B.C.S.C.) the accused was charged with murdering a woman with whom he had once lived and the case for theCrown was largely circumstantial as is in this case at bar. In deciding to release the accused, the Court commenting on the strength of theCrown’s case commented “In coming to the conclusion that I have, I have given weight, if not substantial weight, to that fundamentalconcept of our criminal law, namely, the presumption of innocence in favour of the applicant.

Furthermore, this is not a case where it ispractically inevitable on the evidence that the applicant will be convicted of some lesser included offence which would inevitably entail asubstantial period of incarceration”. 47. Justice Trotter in the same book, while discussing the above mentioned comments of the court in R. v. Aldrich on page 3-36 writes“the strength of the evidence can work to the benefit of the accused if the case is manifestly weak.

Here it can be said that it isoppressive and unjust to detain an accused pending trial when the evidence, short of belying reasonable and probable grounds, istenuous”. 48. I find that this case at bar has some similarity to the above mentioned case R v Aldrich. In the Aldrich case, the victim was anestranged companion while in this case, the victim was a close friend of the accused. In both matters, the case for the Crown is largelycircumstantial. The accused was released in R. v. Alderich even though he was charged with murdering a woman. 49.

Again by referring to the above, I am not trying to say that if somehow a court finds that a Crown’s case is weak, accused should bereleased even if there is substantial likelihood that if released, the accused would commit further crimes. It is understood that otherimportant factors like strength of the bail plan and the sureties must be considered and all the competing factors must be balanced andrules of the law must be held. 50. After hearing the allegations and his past history, there is no doubt in my mind that chances are that the accused, if released wouldcommit a serious offence.

However having said this, I have to consider whether the proposed sureties and their plan will sufficientlyreduce any possible risk the accused could commit further serious offences and whether the apparent risk can be reduced to a tolerablelevel by conditions of the release. At this point, I must say that there is no doubt that the accused has a youth court record but it has beenover a year and a half old since his last offence. Therefore, I am not overly concerned with his youth court record.

51 . Releasing a person accused of such a serious offence involves a degree of risk to the public. The court has to balance this risk against conditions of the release so the risk can be properly managed. The overwhelming concern is whether or not the sureties can be trusted to keep him away from the area where the offence took place and away from the other persons mentioned in this case, especially T.M.. 52 . Considering the evidence, I find that the proposed plan is an adequate plan, where there is a significant financial risk to the sureties.

These two proposed sureties, in order to secure his release, have proposed the accused be under strict house arrest with twenty four hours direct daily supervision by at least one of the sureties at all times. These two proposed sureties, as a matter of fact will act as his jailers. Both sureties seem to be responsible, intelligent and capable of supervising and controlling him to satisfy any conditions of his release. 53 .

I was impressed with surety J.S. when she said that she won’t even take the chance of letting the accused leave the residence other than with her son M.S., not even allowing him to go out with her daughter, who is the accused mother. I agree with her not letting him out with his mother, because the mother has failed in the past to supervise and control him while being his surety. I am confident that the proposed sureties would indeed accurately perceive and report any breaches imposed as part of the release order. 54 .

The proposed sureties have a significant risk as they can lose $100, 000.00 of their hard earned money if there is a breach of bail conditions. It should be noted that they were even prepared to pledge a higher amount than $ 100,000.00. As in R v Ryczak (2007), Superior Court Justice Quinn J at para 168 said “it is impossible to impose the necessary responsibility on surety who has no financial interest at stake. It is the financial commitment that excites the self interest of the surety”. I find that this is in their own best interest to supervise and control him as per the bail conditions. 55 .

I also find that if the proposed and any additional conditions this court is going to impose as part of the release order, are met and supervised as effectively as promised by the sureties, there won’t be any serious concerns left for the safety of the public or the victim’s family. I will say that in light of this proposed bail plan, his detention will undermine the principles governing the treatment of young people under the Y.C.J.A. 56 .

A reasonable and fair-minded person with understanding of the Y.C.J.A. and the bail system would understand that there are no offences for which bail is automatically prohibited and that persons charged with offences as serious as sexual assault and murder are often granted bail.

Furthermore, a reasonable and fair-minded person after being informed of Crown’s weak case, the high quantum of the bail set at $100,000.00, the proposed conditions of release that the accused not be able to step out of his residence except in the presence of only two people, and the fact that the identification of the accused is a serious trialable issue, that reasonable person after knowing these fact, would not lose confidence in the justice system. L. Disposition: 57 .

Having said all this, I am satisfied on a balance of probabilities that a condition of the release order would meet the threshold as set out in Section 29(2) (

c) of the Y.C.J.A. I am further satisfied that the plan of release is sufficient to reduce the Court’s or Crown’s concerns on the secondary and tertiary grounds. For all of the reasons which I have given above, I find that the Crown has not shown cause as to why his detention is necessary on the secondary and tertiary grounds. Accordingly, he will be released.