Her Majesty the Queen - v. - KRT, 2019 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 37 Date: June 14, 2019 Informations: 991084216, 991084222 Location: Saskatoon Between: Her Majesty the Queen - and - KRT Appearing: A.A. Furlonger For the Crown M.D. Nolin 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. Note: this decision has been redacted .

JUDICIAL INTERIM RELEASE DECISION Q.D. AGNEW, J [ 1 ] The accused, KRT, is charged with several offences, all of them arising out of the same incident:

a. carrying a weapon for a purpose dangerous to the public peace - Criminal Code , s. 88 ; b. possessing a [prohibited/restricted] firearm without a licence - Criminal Code , s. 91(1) ; c. carelessly using a firearm - Criminal Code , s. 86(1) ; d. second-degree murder - Criminal Code , s. 235(1) . [ 2 ] KRT is currently 18 years old. At the time of the alleged offences, he was 17, and his charges are therefore being dealt with under the Youth Criminal Justice Act [ YCJA ]. KRT has been in custody since his arrest on these charges, approximately three months ago.

He came before me on June 7, 2019 for a show-cause hearing, seeking his release until these charges are dealt with. He has no other outstanding charges. [ 3 ] I intend to first set out the salient factual allegations of the Crown, and then review certain principles of bail which are relevant to KRT’s situation. Following that, I will outline the positions of Crown and defence with respect to KRT’s release. I will analyse the facts and law, and come to a conclusion on the ultimate question of whether to release KRT and, if so, on what conditions.

Allegations of fact [ 4 ] In brief, the case alleged against KRT at this point is that: a. he and another youth approached a specific house in Saskatoon from the alley and, in the alley at the back of the house, encountered the victim; b. both youths were armed with firearms; c. the house in question was the target of the youths’ attention; that is, it was their destination and the reason they were armed; d. after a brief verbal exchange involving the victim, a series of shots were fired, although whether by KRT, the other youth or both is not clear at this time; e. the victim was unknown to the youths, and his presence at the house was unrelated to the reasons for their presence, although it is unclear whether or not they knew this; f. the victim received three wounds.

One caused his death; the other two were not contributing factors in his death; g. following the shooting, the youths fled back to the house they had come from initially. When they later exited that house, they were arrested. At the time of their arrest, both were armed with loaded firearms; h. both youths were connected with a Saskatoon gang which is known to be involved in offences involving drugs and violence, and were in possession of gang colours at the time of the attack on the victim. Principles [ 5 ] The interim release provisions which apply to young persons are found in s. 29 of the YCJA .

It reads as follows: 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. [ 6 ] The first issue is whether or not a remand in custody is even available. Section 29(2)(

a) addresses this. In the present case, as KRT is charged with second-degree murder, a remand is available: s. 29(2)(a)(

i) allows a remand in the case of a charge of “a serious offence”, which is defined in s. 2 as “an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more”. Under s. 235(1) of the Criminal Code , second- degree murder is an indictable offence, and is punishable by imprisonment for life. [ 7 ] Pursuant to s. 29(2)(b), even once the threshold issue of s. 29(2)(

a) has been met, the Court can order an accused held in pretrial detention only if one of three conditions are satisfied, commonly referred to as the primary, secondary and tertiary grounds.

They are: a. primary - where there is a substantial likelihood that the accused will not attend court as required; b. secondary - where detention is necessary for public safety, including (1) witness safety and/or (2) where there is a substantial likelihood that the accused will, if released, commit a serious offence (defined as above); c. tertiary - where: (1) neither the primary nor the secondary ground have been met; (2) there are exceptional circumstances which warrant detention; and (3) detention is necessary to maintain public confidence in the administration of justice. [ 8 ] Specific to the third criterion of the tertiary ground, there are particular provisions, both statutory and from case law, which assist the Court in determining whether the accused’s detention is required in order to maintain public confidence in the administration of justice.

The provisions from case law will be discussed further, below. The statutory considerations are as follows: a. the fundamental principles of the YCJA as found in s. 3, which include enhanced procedural protections for young persons who are accused of offences;

b. the apparent strength of the Crown’s case; c. the gravity of the offences alleged; d. the circumstances surrounding the commission of the alleged offence, including whether or not a firearm was used; e. whether the accused, if found guilty, is liable to a potentially-lengthy custodial sentence. [ 9 ] The onus is on the Crown to make out the primary, secondary or tertiary grounds for detention, on a balance of probabilities (s. 29(2) and (3)). The Crown also has the obligation to show, on a balance of probabilities, that (s. 29(2)(

c) and (3)) there are no conditions which could be imposed on the accused which would: a. where the primary ground is at issue, reduce risk of non-appearance below “substantial”; b. where the issue is the secondary ground, offer adequate protection to the public; c. where the tertiary ground is argued, maintain confidence in the justice system. [ 10 ] By virtue of s. 28 of the YCJA , the interim release provisions of the Criminal Code apply to interim release under the YCJA , except where they are overridden by the YCJA .

In my view, this means that the case law which has developed regarding adult judicial interim release is also applicable under the YCJA , except where incompatible with the YCJA . [ 11 ] There are significant similarities between the primary, secondary and tertiary grounds in the YCJA and the primary, secondary and tertiary grounds in the Criminal Code . There are also, however, some differences which are of particular significance.

For example, the tertiary ground set out in the Criminal Code does not require “exceptional circumstances” in order to operate; indeed, the Supreme Court of Canada has made express mention of this lack: see R v St-Cloud , 2015 SCC 27 at paras 5 , 53, 54 and 87, [2015] 2 SCR 328 [ St-Cloud ]. As noted above, however, “exceptional circumstances” are explicitly required for the tertiary ground to operate under the YCJA .

Similarly, in St-Cloud the Supreme Court of Canada instructed that the Criminal Code ’s tertiary ground does not apply only where the primary and secondary have been found inapplicable, but can be found in conjunction with them ( St-Cloud , para. 87).

By contrast, the YCJA expressly states that the tertiary ground is only available for an accused youth where neither the primary nor the secondary ground have been made out (s. 29(2)(b)(iii)). [ 12 ] None the less, I consider that St-Cloud is applicable to tertiary-ground issues under the YCJA , provided that the Court bears in the differences between judicial interim release under the Criminal Code versus the YCJA . St-Cloud is a recent decision, by Canada’s highest court, analysing the tertiary ground in significant detail.

Comparing the release provisions of the Criminal Code and the YCJA , it is clear that Parliament has modelled the latter on the former, albeit with significant differences. St-Cloud accordingly has important guidance to offer to youth courts in considering the tertiary ground. [ 13 ] The tertiary ground is fundamentally concerned with public confidence: “the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met . . .” ( St-Cloud , para. 87).

Even if all four of the enumerated factors fall in favour of detention, this is not the end of the analysis: “A court must not order detention automatically even where the four listed circumstances support such a result” ( St- Cloud , para. 87). All relevant circumstances must be considered; the enumerated four are obviously important, but other factors beyond them can also be considered. In the end, the various factors are used simply to assist the Court in determining whether or not public confidence requires detention. [ 14 ] How, then, is the public reaction to be measured?

Again, St-Cloud provides the answer. The test for public confidence is (para. 87): the perspective of a reasonable person who is prop e rl y informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused . . .

This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[ 15 ] Another Supreme Court of Canada decision of considerable significance in matters of judicial interim release is R v Antic , 2017 SCC 27 , [2017] 1 SCR 509 [ Antic ] . Like St-Cloud , it dealt with an adult accused; also like St-Cloud , however, its comments are applicable to release under the YCJA as well, with the same caveats. [ 16 ] At paragraph 67 of Antic , the Supreme Court laid out a number of principles which apply to questions of judicial interim release.

Those which are most important to the issues before me, which I have paraphrased for ease of reading, are: a. the accused is presumed to be innocent; b. there is a presumption that an accused person is entitled to pretrial release; c. there is a presumption that such release be without conditions; d. terms of release can only be imposed to address risk factors which would otherwise keep the accused from being released. [ 17 ] These presumptions are, of course, just that: they are not final conclusions which the Court must accept.

The presumption in favour of unconditional release, for example, does not mean that every accused is automatically entitled to pretrial release without conditions, or indeed at all. The presumptions are simply the starting-points for the analysis. [ 18 ] The final principle is that there is no offence for which interim release is impossible. That is, no matter what the charge, interim release is always at least a possibility. The nature of the alleged offence will, for example, be a factor under the tertiary ground, but there is no offence in the Criminal Code for which bail is prohibited.

Crown’s position on release [ 19 ] The Crown is opposed to KRT’s interim release. It is opposed on both the secondary and the tertiary grounds. [ 20 ] On the secondary ground, the protection of the public, the Crown notes that KRT seems to have been gang-involved at the time of the murder, and to have been specifically doing something gang-related when the murder occurred. The Crown points to certain reports filed with the Court which note that KRT may be easily led.

KRT was himself a victim of a savage attack approximately one year prior to this murder, and the Crown postulates that he may thereafter have immersed himself in the gang as a way of obtaining protection. KRT seems to have a significant substance- abuse problem, and the gang with which he seems to have affiliated himself is a known supplier of some of KRT’s preferred substances; that is, the gang may well be his supplier.

The Crown points out that gang protection and drugs are not free: the gang expects things - specifically, criminal acts - from its members in repayment and this, together with KRT’s personality of being susceptible to being led, makes him a risk if he is released. [ 21 ] On the tertiary ground, the Crown states that the gang with which KRT was associating is largely made up of youth, and is reckless and violent. Its members are frequently found with loaded firearms. This case has attracted significant attention, particularly in the neighbourhood in which it happened.

The Crown accordingly argues that the tertiary ground has been made out, and that KRT’s detention, in all of the circumstances, is required to maintain public confidence in the administration of justice. Defence position on release [ 22 ] Defence submits that KRT can and should be released, pending resolution of these charges. Defence points to a number of factors in KRT’s favour: a. he has no prior criminal record, nor does he have any outstanding charges other than those before me. Thus, he has no

history of breaching conditions, of violent behaviour, or of any other troubling offences; b. he has strong family support. His parents were in court for his bail hearing, as were a number of other family and friends; c. he has the offer of a stable residence, with a person with whom he has resided for roughly one-third of his life (not hisresidence at the time of the murder); d. he has worked extensively with a mentor from the New Horizons program during his time on remand, and has madesubstantial progress. He intends to keep working with her.

She has developed a weekly plan of activities which both addresses hisongoing issues and attempts to avoid an excess of unallocated time. It includes daily check- ins with KRT, whether in-person or bytelephone. She has received confirmation from her supervisors that she will remain supervising KRT throughout his current courtinvolvement.

She has also informed KRT that she will report him immediately to the police if she becomes aware that he has breachedany conditions which might be imposed by the Court. [23] The Crown pointed out that the male at the residence proposed has a criminal record which includes, inter alia, convictions forfailure to attend court (as recently as 2017) and obstructing peace officers. These are valid concerns on their face.

I note, however, that(1) the male and female at the residence actually occupy separate suites, and the proposal is for KRT to reside with the female; (2) thefemale has no criminal record; (3) the male’s last conviction for obstructing a peace officer was in 2004. Analysis Secondary ground [24] The Crown argues for KRT’s detention on the secondary ground.

To repeat that ground, the Crown must satisfy me, on abalance of probabilities, that detention is necessary for public safety, including (1) witness safety or (2) a substantial likelihood that the accused will, if released, commit a serious offence, and that there is noset of conditions which might offer adequate protection from that risk. [25] The Crown does not suggest that witness safety is an issue if KRT is released. The Crown argues instead what I have characterizedas (2), above - that the specific public safety issue it is concerned about is KRT committing one or more serious offences if released.

It isworth reiterating that ground, with appropriate emphasis: the onus is on the Crown to show, on a balance of probabilities, that KRT’s pretrial detention is necessary, because there is asubstantial likelihood that KRT will commit a serious offence if released, and the Crown has proven, on a balance of probabilities,that there is no set of conditions which will offer adequate protection from that risk. [26] Examining each of these in turn: a. onus is on the Crown - this is self-explanatory.

It is up to the Crown to show these things, not up to KRT to disprove them; b. balance of probabilities - the Crown does not have to prove these things beyond a reasonable doubt, but neither does itmerely have to raise a reasonable suspicion, or a reasonable doubt, or show reasonable grounds to believe. Rather, it must show that thesethings are more likely than not; c. necessary - the Crown must show that detention is not merely desirable, or that it would be a good idea: it must show that itis “necessary”. What does this mean?

The word was considered, in the context of adult bail, in R v Tschetter, 2008 ABPC 60, where theCourt stated: “[t]he definition of ‘necessary’ in the Shorter Oxford English dictionary, is ‘indispensable, requisite, needful; that cannot bedone without’ and in the historical context of that word relating to actions, gives the definition ‘needful to be done’.” (para. 8) The samedefinition was used by the British Columbia Court of Appeal, albeit in the context of interpreting civil rules of court (De Sousa v Kuntz, (BC CA), 24 BCLR (2d) 206(CA)).

However, Black's Law Dictionary (4th Ed.) offers the following caution: This word must be considered in the connection in which it is used, as a word susceptible of various meanings. It may import absolutephysical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper or conducive tothe end sought.

Given the presumptions of innocence and pretrial release (see Antic), notwithstanding the warning given by Black’s, I find that themeaning of “necessary” in s. 29(2) of the YCJA to be as quoted from the Shorter Oxford English Dictionary, namely “indispensable,requisite, needful, that cannot be done without”. Furthermore, the necessity here has to be made out specifically by the substantiallikelihood of further serious offences; d. substantial likelihood - this phrase, in this context, is a measure of the risk which the Court is assessing.

It directs the Courtto accept a certain level of risk of a serious offence being committed by the accused if released. If the risk is slight, the test is not met,notwithstanding that the offence which is being risked is a significant one. The phrase has been interpreted a number of times in bailcontexts, albeit in adult cases rather than youth. In R v Link, 1990 ABCA 55, 105 AR 160, the Alberta Court of Appeal concluded thatthe phrase, in the context of the adult secondary ground, meant “substantial risk” (para. 3).

In R v Moore (1973), (ONSC), 16 CCC (2d) 286 (Ont Dist Ct), the Court interpreted the phrase to mean, “is there a real likelihood that the accused will commit anoffence if released? I say the word "real" for it must be a likelihood that is of some substance, not conjectural nor illusory” (para. 8)(emphasis in original). In R v Young, 2010 ONSC 4194, the Court held that the phrase meant “that the applicant might well commitanother offence if admitted to bail, such that the risk is real or tangible, and not simply fanciful or imaginary” (para. 20).

On the otherhand, in R v Carbone (1972), 20 CRNS 313 (Ont County Ct), the Court held that the phrase “is more akin to the balance of probabilities in that the evidence should substantially weigh in favour of the likelihood ofa repetition of the offence.” (para. 5) With respect, I would not be inclined to go that far; I consider that if Parliament had intended thetest to be similar to a balance of probabilities, Parliament would have used that term. “Substantially weighing in favour of” is, in myview, too weighty a test.

I conclude that “substantial likelihood”, as it is used in the secondary test for interim release under the YCJA,means a risk which is more than conjecture, one which can be articulated and which has a reasonable basis in the circumstances of thecase. “Substantial” in this context is therefore not a measure of weight as such (equivalent for example to “high”), but a measure of thesolidity of the likelihood - the likelihood has substance, it is not merely fanciful or the product of insubstantial fears. The bar is thereforenot as high as “balance of probabilities”.

Given all of the other tests which must be met for pretrial detention to be ordered under theYCJA, this definition also strikes an appropriate balance between the young person’s right to pretrial release and society’s right toprotection; e. serious offence - this is defined in s. 2 of the YCJA as “an indictable offence under

an Act of Parliament for which themaximum punishment is imprisonment for five years or more”; f. adequate protection - this is again an assessment of risk. The question is not one of perfect protection; the Court rather hasto assess whether or not the level of risk is one which is acceptable. This requires weighing the degree of risk, together with the severityof the risk. The higher the severity, the less the degree will have to be to exceed the threshold of “acceptable”. The severity has alreadybeen determined, by the fact that it includes only “serious” offences as defined in the YCJA.

Accordingly, the degree of risk does nothave to be as high. I note, given the difference in wording, that the risk assessment here is not the same as that for “substantiallikelihood”. [27] Applying the above to KRT’s situation, the Crown has not met its onus for detention on the secondary ground. I accept that there isa risk that KRT will, if released, commit a serious offence - the Crown’s fears about KRT’s gang connections, and his willingness tofollow, are not baseless. The Crown has not, however, shown on a balance of probabilities that this is a substantial likelihood.

Nor hasthe Crown shown that an adequate level of protection for the public is impossible through appropriate conditions: KRT has no history ofbreaching conditions; the Crown has shown no reason to believe that he will not abide by conditions if imposed; and the Crown has notshown that there are no conditions which will sufficiently mitigate the risk. [28] Accordingly, I conclude that detention is not required on the secondary ground. Imposition of conditions to address secondary-ground risks is, of course, available. Tertiary ground [29] The Crown also urges KRT’s detention on the tertiary ground.

Bydefinition under the YCJA, this is available only where detentioncannot be justified on the primary or secondary grounds.

In other words, even though KRT can reasonablybe expected to appear in courtwhenever required, and can reasonably be expected not to commit further offences while on release, he should none the less be held incustody pending resolution of his charges. [30] The balance of the requirements for the tertiary ground can be summarized as: (1) there are exceptional circumstances whichwarrant detention; and (2) detention is necessaryto maintain public confidence in the administration of justice. - exceptional circumstances

[31] Neither Crown nor defence addressed the question of whether or not exceptional circumstances exist, despite that being aprecondition to the operation of the tertiary ground. [32] I have been unable to find any case law defining “exceptional circumstances” in the context of s. 29. It appears elsewhere in the YCJA, in s. 39(1)(d), referring to circumstances which would render a non-custodial sentenceinconsistent with the YCJA’s purpose and principles.

The Ontario Court of Appeal extensively considered its use in that section, in R vW(RE) (2006), (ON CA), 205 CCC (3d) 183 (Ont CA) [REW], including a review of case law, in paragraphs 22 - 32. It concludes: The theme that runs through use of the term "exceptional" in both criminal case law and legislation, is that it is intended to describe theclearest of cases.

Such cases include those where applying the normal rules would undermine the purpose of the legislation, where theexercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. (para31) [33] I do not suggest that this statement is definitive with respect to the tertiary ground in the YCJA. It is apparent, even simply from thereview of legislation and case law in REW, that use of the word “exceptional” is context-specific. The REW comments are at leastinstructive, however. Is KRT’s situation “the clearest of cases”?

Would applying normal rules “undermine the purpose of thelegislation”? The answer to both is “no”. Can KRT’s circumstances otherwise be described as “exceptional”? [34] KRT is charged with second-degree murder. That, in and of itself, is not an exceptional circumstance. Parliament could have createda class of offences for which pretrial detention is presumed (like the reverse-onus offences for adult accused - see Criminal Code s.515(6), for example). Parliament could have created a class of offences and deeded them to constitute “exceptional circumstances”.Parliament chose to do neither.

I conclude, therefore, that something more than the charge itself is required to constitute “exceptionalcircumstances”. [35] The circumstances of the alleged offence could also constitute “exceptional circumstances”. Here, the allegations include that theyouths used firearms in the murder of a person who was a stranger to them, possibly in pursuit of a gang-related goal.

From theinformation available, it may well be that the victim died simply because he was at the wrong place at the wrong time. [36] Given that the tertiary ground can only be applied in cases of serious offences, as defined, “exceptional circumstances” must be viewed within the context of such offences: that is, not what is exceptional compared to normal,law-abiding behaviour, nor what is exceptional compared to the entire range of possible offending behaviour, but rather what isexceptional within the range of serious offences, as that term is defined in the YCJA.

I am unable to conclude that the circumstances hereare “exceptional” within the meaning of the tertiary ground. [37] There may well be, in addition to the paths which I have explored above, other ways in which KRT’s circumstances could be foundto be “exceptional”. I note that, pursuant to s. 29(3), the onus is on the Crown to show that.

It has not done so. [38] In the event that I am incorrect with respect to KRT’s circumstances not being exceptional, I will consider the final issue withrespect to detention on the tertiary ground, namely whether public confidence in the administration of justice requires KRT’s detention. [39] Before doing so, however, I would note in passing that, having found that exceptional circumstances do not exist, I can still imposeconditions on KRT’s release pursuant to the tertiary ground.

As noted above, there are three preconditions to detention on the tertiaryground: (1) neither the primary nor the secondary ground have been met; (2) there are exceptional circumstances which warrantdetention; and (3) detention is necessary to maintain public confidence in the administration of justice. By virtue of s. 29(2)(c),conditions can be imposed in order to maintain confidence in the administration of justice even in the absence of exceptionalcircumstances - that is, where precondition (3) exists by itself. Section 29(2)(

c) does this, in essence, in the negative:

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

c) the judge or justice is

satisfied . . . that no condition or combination of conditions of release would . . . (iii) maintain confidence in the administration of justice. [ 40 ] Thus, it is open to a court to find that public confidence is at issue, but no exceptional circumstances exist. In such a circumstance, detention could not be justified on the tertiary ground, but conditions of release could be imposed on the accused, for the purpose of maintaining public confidence.

This would be similar to a release on conditions where there is a concern on the secondary ground, public safety: the risk is not so great as to force detention, but the conditions are in place to reduce that risk to the point that release is appropriate. With respect to the tertiary ground, in such a circumstance the risk is not to public safety but to public confidence in the justice system, and conditions would be crafted so as to mitigate that specific risk.

Unlike conditions relating to the secondary ground, such conditions would not necessarily have to be related to public safety, and therefore not necessarily related to the alleged offending behaviour which has the accused before the Court; rather, the category of potential conditions is broader, as the purpose of tertiary- ground conditions is to reassure public confidence in the justice system.

I note, however, that as with detention itself, public confidence could be shaken by the imposition of too many, or inappropriate conditions, as much as it could be by the imposition of insufficient conditions. - public confidence in the administration of justice [ 41 ] Public confidence in the justice system, as pointed out by the Supreme Court of Canada in St-Cloud (para. 87), is a double-edged sword.

The reasonable and properly-informed person can have their faith in the justice system shaken by the release of an accused person; equally, however, their faith can be shaken when someone who should be released is not. [ 42 ] With respect to the four express criteria under the tertiary ground, I would assess them as follows: a. strength of the Crown’s case - at this point, the Crown’s case appears strong.

It is of course a truism that the Crown’s case often appears strongest at the bail hearing, before defence has had an opportunity to test the evidence, and before any witnesses have actually spoken before the Court - frequently, the case at trial turns out to be substantially less than it appeared at the bail hearing. None the less, at this stage the case against KRT seems significant; b. gravity of the offence - KRT is charged with second-degree murder.

It is one of the most serious charges in the Criminal Code ; c. circumstances - a firearm was used, in what seems to have been a random encounter between gang-involved persons and someone who was a stranger to them, and uninvolved in their activities; d. potential penalty - although the Court can take into account potential mitigating or aggravating circumstances which might affect sentence ( St-Cloud , para.65), which would include for example Gladue factors affecting a potential sentence, it is clear that the potential penalty for KRT is considerable.

If the Crown is able to proceed against him as an adult, he could be facing a life sentence. If KRT is sentenced as a youth, the maximum penalty he could face under the YCJA is seven years, comprised of four years in custody and three years of supervision (s. 42(2)(q)(ii)). [ 43 ] As noted above, the findings on the four enumerated tests are not determinative. Even if all four suggest detention, the actual test remains public confidence in the justice system ( St-Cloud , para. 87).

The test is the reasonable person as defined in para. 87 of St-Cloud , who considers not just the four statutory tests, but all of the other factors noted by the Supreme Court of Canada. Those factors must necessarily include all of the factors in favour of KRT’s release, including his record and his release plan.

The reasonable person, as also noted in St-Cloud , recognizes that public confidence in the justice system can be undermined by detaining persons who should not be detained, just as it can be by releasing persons who should not be released. [ 44 ] I find that the reasonable person would not conclude that KRT needs to be detained to maintain public confidence in the administration of justice.

KRT can reasonably be expected to appear in court when required; he can reasonably be expected not to commit serious offences when on release; he is entitled to the presumption of innocence; he has a good release plan, which addresses many of the issues which placed him in the circumstances he was in prior to the murder; he has strong support from others for his release plan; and he had taken many positive steps while in custody to address those same issues, steps which furthermore show a resolve and dedication far beyond what the Court usually sees in offenders and alleged offenders.

Conclusion [ 45 ] Pretrial custody is not about punishment. KRT, like all accused, is presumed to be innocent, and there is therefore at this point nothing to punish him for. There is no basis for believing that, if released, he will not attend court as required. There is no basis for believing that, if released, there is a substantial likelihood (unmanageable by appropriate conditions) that he will commit a serious offence, as that term is defined in the YCJA . There is no reason to believe that he will not comply with conditions.

The case does not involve exceptional circumstances and, even if it did, there is no basis for believing that public confidence could not be reassured by imposition of appropriate conditions, rather than detention. [ 46 ] Accordingly, I order the release of KRT on an undertaking, on the following conditions: a. keep the peace and be of good behaviour; b. report to a youth worker before leaving the Court House, and in any event by 4:00 p.m. on June 14, 2019, and thereafter as directed; c. reside with [redacted] at [redacted], and not change that residence without prior written permission of your youth worker or the Court; d. comply with a curfew of 9:00 p.m. to 7:00 a.m. daily unless in the company of [redacted] or [redacted or a designate of [redacted], or with prior written permission of your youth worker; e. present yourself at the door to any youth worker or peace officer checking on compliance with your residence or curfew conditions; f. maintain daily contact, either in person or by telephone, with [redacted] or designate; g. attend school or day programming, or seek and maintain employment as directed by your youth worker, or attend programming as specified by [redacted] or designate; h. not possess or consume alcohol, cannabis or marijuana or any derivative thereof except as may be prescribed for you by a medical practitioner, illegal drugs, or prescription drugs that have not been prescribed for you, and in the event of cannabis, marijuana or other drugs that have been prescribed for you, not consume them except in accordance with such prescription; i. not be in any place the primary purpose of which is the sale or consumption of alcohol, cannabis or marijuana or any derivative thereof except for the purpose of filling a prescription; j. take such personal counselling as your youth worker may direct; k. have no contact, directly or indirectly, with [redacted] except through counsel; l. not be at the place of residence, education or employment of [redacted] as may be know to you; m. not possess any weapons as defined in the Criminal Code , and not possess any firearms, ammunition or explosive substance for any purpose; n. have no contact, directly or indirectly, with any person known or believed by you to be a member of the “Hustle Crew”, and not have on your person any

article of clothing which is predominantly green, or green and white, in colour. Q.D. Agnew, J