Her Majesty the Queen - v. -, 2017 SKPC 048

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2017 SKPC 048 Date: May 23, 2017 Information: 43844423, Y280200, 991001700, 991004011, 991003161, 991008404 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - C.M.S.

Appearing: Tamara Denluck For the Crown Rylund Hunter For the Defence 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 witness in relation to an offence alleged under the Act .

_____________________________________________________________________________ DECISION S.S. ANAND , J _____________________________________________________________________________ INTRODUCTION [ 1 ] Seventeen-year-old C.M.S. is charged with a number of different offences arising from incidents that allegedly occurred on five separate occasions. Pursuant to

section 31 of the Youth Criminal Justice Act [ YCJA ], she was released to the care of a responsible person in relation to the charges stemming from the first four of these incidents. Less than a month after being released in this fashion, C.M.S. faced new charges, including allegations that she breached the conditions of her

section 31 undertaking. The Crown applied to detain her in custody on the new charges, revoke her previous release documents, and remand her until she could be dealt with according to law, pursuant to section 524(8) of the Criminal Code and section 29(2) of the YCJA . [ 2 ] The issue is, does the adult bail revocation provision contained in section 524(8) of the Criminal Code , modified to accord with

section 29 of the YCJA , apply to a young person charged with a criminal offence and who is bound by a form of release, in this case, an undertaking under

section 31 of the YCJA ? [ 3 ] Although I held that I do not have the jurisdiction to revoke C.M.S.’s release under section 524(8) of the Criminal Code , I did order her detention on the new charges. In the course of doing so, I indicated my intention to provide written reasons pertaining to my ruling concerning bail revocation. Those reasons are provided in the paragraphs that follow. BACKGROUND [ 4 ] The most serious charges that C.M.S. faces are also the ones that are alleged to have occurred first.

On Information 43844423, she is charged with committing the following offences on January 3, 2017: one count of unlawful confinement and one count of aggravated assault. The Crown proceeded by way of indictment on the former count and the latter count is indictable by law. On the same Information, C.M.S. is also charged with two counts of the

summary conviction offence of breach of youth sentence order. A public interest warrant was issued for her arrest in connection to all of these offences. [ 5 ] That warrant was executed on January 27, 2017 when C.M.S. was arrested for the offences contained on Information Y280200. The Crown proceeded by way of

summary conviction in relation to these offences, which consist of one count of obstruction of a peace officer in the lawful execution of his duty and two counts of breach of youth sentence order. On February 2, 2017, C.M.S. was released on an undertaking in relation to Informations 43844423 and Y280200 by a youth justice court judge. On February 10, 2017, Information 991001700 was sworn. It alleges an additional indictable offence of possession of stolen property exceeding $5,000.00, arising out of the same events of January 27 as Information Y280200. [ 6 ] Two new Informations were subsequently sworn.

On Information 991003161, C.M.S. is charged with two counts of breach of undertaking arising out of a set of circumstances that were alleged to have occurred on February 22, 2017. A public interest warrant was issued for her arrest and, on March 2, 2017, it was executed. On that date, by virtue of Information 991004011, C.M.S. is charged with one additional count of breach of undertaking and one count of breach of a youth sentence order. The Crown proceeded by way of

summary conviction in relation to the counts contained in Informations 991003161 and 991004011.

[7] On March 13, 2017, a contested judicial interim release hearing was held. The presiding youth justice court judge, after reviewing a judicial interim release report pertaining to C.M.S., listening to the oral submissions ofcounsel, and hearing from a proposed

section 31 responsible person, released C.M.S. on a

section 31 undertaking that placed her in thecare and control of the responsible person in question. In doing so, the youth justice court judge indicated that she was satisfied thatC.M.S. needed the direct supervision that the responsible person could provide. The youth justice court judge also expressly cancelled allof C.M.S.’s previous releases and imposed a single

section 31 undertaking in relation to all of the matters before the court. [8] On March 27, 2017, C.M.S. entered not guilty pleas to the charges on Information 43844423 and a trial date of May 17, 2017 was set. She also adjourned her other matters to the trial date in order for counsel to addressthose matters at that time. [9] However, all of the Informations before the court were brought forward on April 5, 2017. On that date, the court heard that the

section 31 arrangement had broken down with the responsible person. Nevertheless, the Crownconsented to amend the

section 31 undertaking in order to place C.M.S. in the care of a new responsible person. The court obliged bymaking the order. [10] Information 991008404 was sworn on April 11, 2017. This Information pertains to offences allegedly committed on April 10, 2017 and for which C.M.S. was immediately arrested. The Crown proceeded by way ofsummary conviction on all of the counts, which are as follows: one count of possession of stolen property not exceeding $5,000.00, onecount of obstruction of a peace officer in the lawful execution of his duty, two counts of breach of a

section 31 undertaking, and twocounts of breach of a youth sentence order. SUBMISSIONS OF COUNSEL [11] Crown and defence counsel agree that in ascertaining whether or not the adult bail revocation provision applies, with some modifications, to youths, the approach that should be utilized is the modern principle of statutoryinterpretation as endorsed by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 SCR 27[Rizzo Shoes Ltd.].

At para 21 of this decision, the court states, “Today there is only one principle or approach, namely, the words of anAct are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object ofthe Act, and the intention of Parliament.” [12] To buttress its argument that section 524(8) is applicable to youths, the Crown relies on

section 28 of the YCJA.

Section 28 states as follows: 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. In deciphering the meaning and scope of

section 28 of the YCJA, Crown counsel asserts that the court should have regard to legislative intent, textual meaning, and legal norms. In particular, the Crown points to a statementmade in a Library of Parliament legislative

summary pertaining to Bill C-10, the bill that enacted key 2012 amendments to the YCJA’sprovisions pertaining to pre-trial detention. The statement in question reads, “In general, the Criminal Code provisions concerning bailhearings apply to release and detention [of youths] prior to sentencing. The YCJA may, however, override those provisions by providingspecific rules applying to young persons.” (Laura Barnett et al, Legislative

Summary of Bill C-10 (Ottawa: Library of Parliament, 2012)

at 131. [hereinafter Legislative

Summary of Bill C-10]) Thus, the Crown contends that the only way to exclude the provisions of PartXVI of the Criminal Code, including section 524(8), from applying to young persons would be by way of explicit and specific legislativedirection provided in the YCJA, and the Act is bereft of such a provision. [13] To appreciate the significance of the Crown’s submission, one must understand the nature of section 524(8). This provision allows for the revocation of an accused’s bail due to his or her misconduct while on release foran offence other than a

section 469 offence (such as murder). The adult bail revocation subsection mandates that a justice (which,pursuant to

section 2 of the Criminal Code, means a justice of the peace or a provincial court judge), upon finding that an accused hasbreached or was about to breach his or her release order, or where the justice believes on reasonable grounds that the accused hascommitted an indictable offence while on bail, must cancel the accused’s form of release and order that the accused be detained incustody unless he or she shows cause why he or she should not be detained in custody.

Section 524(8) states that the grounds upon whichthe accused can show cause are those contained in section 515(10) of the Criminal Code. [14] Crown counsel relies on three court decisions to support the proposition that the adult bail revocation provision, modified to accord with

section 29 of the YCJA, applies to young persons. In both R v S.B., [2014] NJ No 161 (QL)(PC) [S.B.] and R v C.(D.), [2014] 1097 APR 340 (NLPC) [C.(D.)], Judge Gorman holds that section 515(10) of the Criminal Code doesnot apply to youths because this provision is inconsistent with the grounds set out in section 29(2) of the YCJA, which governs judicialinterim release of young persons. In addition, Judge Gorman notes that section 29(3) of the YCJA states that the onus of proof pertainingto pre-trial detention of youths is always on the Attorney General.

Nevertheless, Judge Gorman also concludes at para 20 of S.B. andreiterates at para 17 of C.(D.) that this [D]oes 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. In R v D.C., 2015 SKPC 59 , 2015 SKPC 059 [D.C.], Judge Daunt, after considering some of the jurisdictional issuessurrounding bail revocation for youths, revokes the young person’s previous release documents but then releases the youth on a newundertaking. She applies Judge Gorman’s previous decisions holding that section 524(8) applies to youths, but with the modificationsthat the onus of proof remains on the Crown and that the test for pre-trial detention is the one articulated in

section 29 of the YCJA andnot section 515(10) of the Criminal Code. [15] Crown counsel makes two final arguments in support of the position that section 524(8) applies to youths. The first argument is that portions of the Declaration of Principle contained within

section 3 of the YCJA aresupportive of this position. In particular, Crown counsel indicates that having young persons be subject to bail revocation is consistentwith a youth justice system that is intended to protect the public. Public protection is an important lens through which the provisions ofthe Act should be construed pursuant to sections 3(1)(

a) and (2) of the YCJA. The last argument made in support of the applicability ofsection 524(8) to young persons is that the remedial purpose behind

section 28 of the YCJA would be seriously hampered if youth justicecourt judges are deemed not to have the power to revoke bail. In essence, the Crown submits that

section 28 of the YCJA remains in theAct to serve a purpose and that purpose must be, among other things, to allow for youth bail revocation. [16] Defence counsel’s submissions focus, first and foremost, on the wording of

section 29 of the YCJA to buttress the position that section 524(8) of the Criminal Code has no applicability to young persons. The opening words ofsection 29(2) of the YCJA state that, “A youth justice court judge or justice may order that a young person be detained in custody only if

[the preconditions in the subsection are satisfied].” Specifically, I am urged to hold that the words “only if” are indicative of the intentionof Parliament that considerations pertaining to the adult bail revocation process are not to be used to justify pre-trial detention of youths. [17] The legislative history of the YCJA’s bail provisions are also relied upon to bolster defence counsel’s

interpretation of

section 29. Prior to the 2012 amendments to the YCJA, the Act’s pre-trial detention provisions madeexpress reference to the pre-trial detention provisions of the Criminal Code, and the Act did not stipulate that the onus of proofpertaining to pre-trial detention hearings was always on the Crown.

By amending the Act so that the pre-trial detention provisions arenow self-contained, and by mandating that the Crown always bears the onus of proof on pre-trial detention hearings, defence counselcontends that Parliament’s intention was to make the adult bail revocation provision inapplicable to young persons. [18] Finally, defence counsel relies upon a number of the principles contained in section 3(1) of the YCJA as support for his position.

In particular, he asserts that section 3(1)(a)(ii), which notes the importance of promoting therehabilitation and reintegration of young persons, would be better served if the Act is interpreted as not allowing for the application ofthe adult bail revocation provision. The applicability of this provision could arguably lead to greater numbers of youths being detained inpre-trial custody, and custodial settings often prove challenging in terms of achieving rehabilitative and reintegrative objectives.

Section3(1)(b), which emphasizes the separate nature of the criminal justice system for young persons vis-à-vis adults, and recognizes theprinciple of diminished moral blameworthiness associated with youths as well as the need for enhanced procedural protections for youngpersons, could be seen as consistent with a system that would not subject young people to the adult bail revocation regime. Defencecounsel posits that such an

interpretation is bolstered by section 3(1)(d)’s recognition that special considerations apply in respect toproceedings against young persons and, in particular, that young persons have special guarantees of their rights and freedoms. Defencecounsel suggests that, given the reduced level of maturity associated with many young people compared to adults, the strictures of thebail regime should not be allowed to be enforced through the mechanism of section 524(8) bail revocation. ANALYSIS [19] I am in agreement with counsel on the approach that should be utilized in ascertaining the proper

interpretation to be given to sections 28 and 29 of the YCJA and, in particular, whether these provisions should be construed so asto allow section 524(8) of the Criminal Code, with some modifications, to apply to young persons. Specifically, I hold that the modernprinciple of statutory

interpretation as endorsed by Rizzo Shoes Ltd. is the rule of construction to be applied. I am also cognizant that,pursuant to the modern principle of statutory

interpretation, courts should look to the intrinsic and admissible extrinsic sources regardingthe Act’s legislative history and the context of its enactment (R v Gladue, (SCC), [1999] 1 SCR 688 at para 25). Indeedthese sources, including administrative materials published by the Department of Justice Canada on its Web site, have been used, in thepast, to interpret key provisions in the YCJA (see, for example, R v B.W.P., 2006 SCC 27 at para 37). [20] When one examines the YCJA’s legislative history, one must consider the Act as it was originally enacted in 2003 as well as the 2012 amendments.

Section 28 was one of the provisions that appeared in 2003, and the sectionremains unchanged as a result of the 2012 amendments. [21] Parliament’s intent in passing the original version of section 29(2) was clearly to reduce the use of pre-trial detention for youths. Section 29(2) of the YCJA, as it was originally enacted, stated as follows: In considering whether the detention of a young person is necessary for the protection or safety of the public under paragraph 515(10)(b) (substantial likelihood – commit an offence or interfere with the administration of justice)

of the Criminal Code , a youth justice court or a justice shall presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(

a) to (c) (restrictions on commital to custody). Thus, while

section 29 expressly indicated that the adult grounds for pre-trial detention continued to apply to youths, subsection (2) of the provision essentially created a presumption that youth who could not receive a custodial sentence if found guilty would not be detained before trial. That one of the catalysts for Parliament to enact this provision was concern about the high rates of pre-trial detention under the Young Offenders Act is made clear by examining the

Preamble to the YCJA , which states, in part, that “Canadian society should have a youth criminal justice system that . . . reduces the over-reliance on incarceration for non-violent young persons[.]” Youth incarceration comes about as a result of youth sentencing as well as pre-trial detention and the new Act took aim at both aspects of the youth justice system. [ 22 ] The 2012 amendments to

section 29 of the YCJA are often thought of as a Parliamentary response to concerns that the pendulum had swung too far towards favoring pre-trial release of youths, but such a statement requires significant qualification. While it is true that the 2012 amendments repealed the presumption of release contained within the original version of section 29(2), other changes ushered in by the amendments further restrict the use of youth pre-trial detention.

Examples of these latter changes include the express placement of the onus of proof onto the Crown in relation to youth bail matters by virtue of the new section 29(3) and the restrictiveness of the new section 29(2), which allows for judicial interim release to be denied only if (1) the young person has been charged with a “serious offence” (defined in

section 2 of the YCJA as meaning an indictable offence for which the maximum punishment for an adult is imprisonment for five years or more) or (2) if the young person has a “history that indicates a pattern of either outstanding charges or findings of guilt[.]” Indeed, these other changes reflect continuing concerns articulated in a 2007 Department of Justice consultation paper about the overuse of pre-trial detention for young offenders (see Department of Justice, Pre- trial Detention under the Youth Criminal Justice Act: A Consultation Paper (Ottawa: Department of Justice, 2007)). [ 23 ] Reading sections 28 and 29 of the YCJA so as to preclude the ability of the Crown to revoke bail through the section 524(8) process would be consistent with Parliament’s desire to address persisting concerns about the prevalence of youth pre-trial detention.

Given the arguably central role played by the placement of the burden of proof in the adult bail revocation process and the obvious inconsistency between which party bears the onus of proof under section 524(8) of the Criminal Code and section 29(3) of the YCJA , it is a credible proposition that section 524(8) does not apply in any way to young people. [ 24 ] One of the most significant reforms brought about by the 2012 amendments to the YCJA was the decision to create grounds for pre-trial detention that were unique to youths.

Immediately prior to referring to the provision that outlines these new grounds, the Library of Parliament legislative

summary of Bill C-10 indicates, as pointed out by the Crown in this case, that, “In general, the Criminal Code provisions concerning bail hearings apply to release and detention [of youths] prior to sentencing. The YCJA may, however, override those provisions by providing specific rules applying to young persons.” ( Legislative

Summary of Bill C-10 at 131.) However, further down on that same page the following revealing passage is found: The bill amends section 29(2) of the YCJA to provide, in that

section alone, all reasons justifying the detention of young persons prior to sentencing. . . By simplifying the pre-sentence detention regime, the bill implements Recommendation 23 of the Nunn Commission. [ 25 ] The Nunn Commission was a commission of inquiry in Nova Scotia whose mandate was to examine the charges laid against AB, a sixteen-year-old teenage male responsible for the death of Theresea McEvoy in Halifax on October 14, 2004, and the reasons leading to his release two days before that tragic incident.

AB, who was driving in a stolen car at the time of the accident, had been released on October 12, 2004, even though 38 criminal charges had been laid against him. Recommendation 23 of the Nunn Commission reads, The Province should advocate that the federal government amend and

simplify the statutory provisions relating to the pre-trial detention of young persons so that

section 29 will stand on its own without interaction with other statutes[.] (D. Merlin Nunn, Spiralling Out of Control: Lessons Learned from a Boy in Trouble – Report of the Nunn Commission of Inquiry, (Halifax: Government of Nova Scotia, 2006) at 245.) [ 26 ] The legislative

summary for Bill C-10 is not the only source of administrative materials from which Parliamentary intent pertaining to sections 28 and 29 of the YCJA can be gleaned.

The backgrounder to the 2012 amendments regarding the pre-trial detention provisions of the YCJA published by the Department of Justice Canada on its Web site states that, “[T]he new test for pre-trial detention of youth is now self-contained within the YCJA, without requiring reference to the Criminal Code grounds for detention, as was previously the case.” (Department of Justice Canada, Press Release, “Government of Canada Announces Coming Into Force of The Violent and Repeat Offenders Segment of the Safe Streets and Communities Act” (23 October 2012), online: http://www.reuters.com/article/idUS125220+23-Oct-2012+MW20121023.) Based on all of these sources, there is a strong argument that the new section 29(2), which contains the ground for pre-trial detention of youths, provides specific rules that override the operation of the adult bail revocation provisions. [ 27 ] This argument is further supported by an examination of the text of the opening words of the current version of section 29(2).

Those opening words state that, “A youth justice court judge or justice may order that a young person be detained in custody only if [the preconditions in the subsection are satisfied].” The words, “only if” are certainly indicative of an intention on the part of Parliament that considerations pertaining to the adult bail revocation process are not to be used to justify the pre-trial detention of young people. [ 28 ] Yet, there are judicial decisions that have decided otherwise.

In particular, Judge Gorman rules in S.B. and C.(D.) that section 524(8) applies to young persons charged with criminal offences who are bound by forms of release, but when this

section is applied to a young person the onus is on the Crown to establish that the young person’s detention is necessary pursuant to the grounds set out in

section 29 of the YCJA . Nevertheless, Judge Gorman does not provide a rationale for this conclusion.

Indeed, I am in agreement with defence counsel’s submission that Judge Gorman’s decisions in these cases seem somewhat internally inconsistent as he rules in both cases that section 524(8) remains operative to young persons and yet he also states that, “The Youth Criminal Justice Act contains a comprehensive scheme for determining the issue of judicial interim release in relation to young people.” (Para 18 of S.B. and para 15 of C.(D.) .) [ 29 ] One way to reconcile this statement with Judge Gorman’s conclusion pertaining to the applicability of section 524(8) to youths is to interpret the statement as an affirmation that the substantive tests governing pre-trial detention for youths are those contained in

section 29 of the YCJA .

It could then be contended that the jurisdiction to re-open the question of youth bail through the section 524(8) revocation process concerns a procedural, rather than a substantive, right. [ 30 ] Let us assume then that Judge Gorman’s conclusion as to the applicability of section 524(8) of the Criminal Code to youths is based on the proposition that the 2012 amendments to the YCJA establish a comprehensive scheme of substantive rights pertaining to youth pre-trial detention, but that the amendments do not preclude the application of procedural aspects associated with the adult bail provisions to youths, including bail revocation in section 524(8).

The difficulty with such an approach is that it is inimical with the principles espoused in section 3(1)(

b) of the YCJA , which emphasizes the separate nature of the criminal justice system for young persons vis-à-vis adults, and recognizes the principle of diminished moral blameworthiness associated with youth as well as the need for enhanced procedural protections for young persons. [ 31 ] A close reading of Judge Daunt’s decision in D.C. also does little to buttress the Crown’s position that section 524(8), with some modifications, applies to youths. Judge Daunt states as follows at para 35 of her ruling: It is not obvious to me that subsections 524(8) and (9) apply to youths. . .

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 the previous release. I will therefore assume, without deciding, that s. 524(8) applies, with the onus remaining on the Crown. Clearly, these statements are a far cry from a ringing judicial endorsement of the proposition that the adult bail revocation provision applies to young people. [ 32 ] In fairness though, the

interpretation of the legislation advocated by the Crown in this case, which would require the court to reverse the onus of proof in section 524(8) and replace the provision’s reference to section 515(10) of the Criminal Code with section 29(2) of the YCJA , does not present the same kind of difficulties as would be encountered if the court were asked to judicially read in and out terms to a similar extent in another statute. As stated by the Alberta Court of Appeal in R v R.J.H. , 2000 ABCA 111 at para 27 , “Adding provisions to a statute by necessary implication cannot be done on a judicial whim.

The test to be met before provisions may be added requires so strong a probability of intention that an intention contrary to that which is imputed . . . [by the statute] . . . cannot be supposed[.]” However,

section 140 of the YCJA expressly contemplates that courts should interpret Criminal Code provisions in a modified form when applying those provisions to youths.

Section 140 of the Act reads, “Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect to offences alleged to have been committed by young persons.” [ 33 ] Thus, although

section 140 of the YCJA can be used to modify the wording of the Criminal Code when those provisions are applied to youths,

section 140 of the Act cannot modify the wording used in the YCJA , including section 29(2) of the Act. It is this wording, coupled with the other reasons given in this decision, which lead me to conclude that section 29(2) of the YCJA restricts the ability of youth court judges and justices to order pre-trial detention for youths. The comprehensive nature of this provision precludes youth justice court judges and justices from revoking youth bail under section 524(8) of the Criminal Code . [ 34 ] Nevertheless, the importance of public protection, which is also recognized in section 3(1)(

a) of the YCJA , suggests that the Crown should be able to revisit the question of bail for youths under certain circumstances by utilizing specific procedures. For example, sections 28 and 140 of the Act should be read so as to allow the bail review sections of the Criminal Code , to apply, with necessary modifications, to youths. The necessary modifications would include that the review provisions apply to the order of release made under

section 29 or 31 of the YCJA by a youth justice court judge and that the substantive grounds for judicial interim release that govern the review be the ones contained in

section 29 of the Act as opposed to

section 515 of the Criminal Code . To interpret the YCJA so as to preclude the applicability of the adult bail review provisions to youths would mean that an order of pre-trial detention made by a provincial court judge concerning a youth could not be reviewed, but a similar order made by a provincial court judge pertaining to an adult could be subject to review by a higher court. Such a reading of the relevant legislation would be inconsistent with section 3(1)(b)’s emphasis on enhanced procedural protections for young persons. While it would be possible to only allow youths to review pre-trial detention orders made against them under

section 520 of the Criminal Code , it is consistent with notions of fairness and fair accountability of youths, themes that permeate the YCJA and that are expressly mentioned in section 3(1)(b)(ii) of the Act, to allow the Crown to apply to review youth release orders made by youth justice court judges under

section 521 of the Criminal Code . [ 35 ] It is important to note that allowing the Crown to apply to the Court of Queen’s Bench for a review of C.M.S.’s release order would not run afoul of the comprehensive scheme for determining youth judicial interim release contained in section 29(2) of the YCJA . This

section only applies to the power of youth justice court judges or justices to order the pre- trial detention of youths. In R v E.E.W. , 2004 SKCA 114 , 188 CCC (3d) 467, the Saskatchewan Court of Appeal notes that provincial court judges are designated youth justice court judges by virtue of section 13(1) of the YCJA . Yet, superior courts of criminal jurisdiction are only so designated in the circumstances provided by section 13(2) and (3) of the Act, which would not include the context of the Crown seeking a review of the release order granted to C.M.S.

In other words, the Court of Queen’s Bench, acting in its capacity as the bail review court in this case would not, itself, be either “a youth justice court judge or justice” within the meaning of section 29(2) of the YCJA . Despite being outside of the scheme created by this provision, the interaction of sections 28 and 140 of the Act with

section 521 of the Criminal Code , in my view, gives the superior court of criminal jurisdiction the power to order the pre-trial detention of the young person.

[36] Moreover, the bail review process is well suited to take into account the changes in a young person’s circumstances that, if they had occurred in the case of an adult, would give rise to possible bail revocation under section524(8) of the Criminal Code. The Supreme Court of Canada in R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 at paras 91-92 and 139clarifies that the bail review process is not a de novo proceeding nor an appeal but a hybrid remedy.

Consequently, a reviewing judge canvary a release order when, among other things, there is admissible new evidence that shows a material and relevant change incircumstances. Such circumstances could include the fact that a youth has breached the terms of his or her release or that he or she hascommitted a new offence while on release. [37] Given that C.M.S. has been released on a

section 31 undertaking, her bail status can also be revisited before me or another youth justice court judge without the need to seek a bail review before the Court of Queen’s Bench. Tounderstand how this could be achieved, a number of

section 31’s subsections need to be explored, beginning with section 31(1), whichreads A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody if a youth justice court judge or a justice is satisfied that (

a) the young person would, but for this subsection, be detained in custody under

section 515 (judicial interim release) of the Criminal Code; (

b) the person is willing and able to take care of and exercise control over the young person; and (

c) the young person is willing to be placed in the care of that person. [38] Section 31(1)(

a) appears to contain a drafting error that requires address by those who seek to give the provision a proper

interpretation. The subsection’s reference to

section 515 of the Criminal Code is consistent with theoriginally enacted 2003 version of the YCJA, which expressly incorporated the pre-trial detention grounds in

section 515 of the CriminalCode. It seems as if the drafters forgot to amend section 31(1)(

a) of the Act when those grounds were abandoned in favor of the groundsin section 29(2) of the YCJA. Consistent with the approach of the Supreme Court of Canada in United States v Allard, (SCC), [1991] 1 SCR 861 [Allard], when the actual wording of a legislative provision gives rise to a manifest absurdity, there is atraceable error in the wording of the provision due to careless amendment, and it is obvious what the correction should be, courts shouldnot hesitate to correct the drafting mistake. In the case of section 31(1)(

a) of the YCJA, all three of the Allard prerequisites are present.Therefore, courts should interpret the subsection by essentially redrafting it so that its reference to

section 515 of the Criminal Code isreplaced by a reference to

section 29 of the YCJA. [39] The responsible person can face criminal charges under

section 139 of the YCJA if he or she wilfully fails to comply with a

section 31 undertaking by, for example, failing to report breaches committed by the young person.Because of this potential jeopardy, Justice Trotter, who has written the authoritative treatise on bail in Canada, characterizes

section 31 ascreating “a ‘super-surety’ relationship, enforced through the criminal sanction, and not financial repercussions.” (Gary T. Trotter, The Law of Bail in Canada, loose-leaf (2010) 3rd ed (Toronto: Carswell, 2010) at 6-20.) [40] A close reading of some of the other

section 31 subsections reveals how a young person’s bail can be revisited if this “super-surety relationship” proves to be problematic. Section 31(4), (5), and (6) read as follows:

(4) A young person, a person in whose care a young person has been placed or any other person may, by application in writing to a youth justice court judge or a justice, apply for an order under subsection (5) if (

a) the person in whose care the young person has been placed is no longer willing or able to take care of or exercise control over the young person; or (

b) it is, for any other reason, no longer appropriate that the young person remain in the care of the person with whom he or she has been placed.

(5) When a youth justice court judge or a justice is satisfied that a young person should not remain in the custody of the person in whose care he or she was placed under subsection (1), the judge or justice shall (

a) make an order relieving the person and the young person of the obligations undertaken under subsection (3); and (

b) issue a warrant for the arrest of the young person.

(6) If a young person is arrested in accordance with a warrant issued under paragraph (5)(b), the young person shall be taken before a youth justice court judge or justice without delay and dealt with under this

section and sections 28 to 30. Thus, in this case, the Crown prosecutor, being “any other person” within the meaning of section 31(4) of the Act, can make an application in writing asking me or another youth justice court judge to make a ruling under section 31(5) that C.M.S. should not remain in the custody of her

section 31 surety and to issue an order relieving the responsible person of her

section 31 obligations. If such findings are made and such orders are issued, there could then be a de novo bail hearing before a youth justice court judge on the charges for which C.M.S. had previously been released. The sections that would govern this de novo bail hearing are sections 28 to 31 of the YCJA . CONCLUSION [ 41 ] Crown counsel makes application to revoke the young person’s bail utilizing section 524(8) of the Criminal Code modified to accord with

section 29 of the YCJA . It is my ruling that a youth justice court judge does not have jurisdiction to grant such an application. When the words of the YCJA are read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, it is clear that

section 29 of the YCJA excludes and is inconsistent with the application of section 524(8) of the Criminal Code . I find support for this

interpretation in the legislative history surrounding

section 29 of the Act, the wording used in the text of this provision, statements found in the

preamble to the YCJA , and the principles espoused in

section 3 of the Act.

[ 42 ] Nevertheless, C.M.S.’s bail can be revisited. Crown counsel can apply to have her release order reviewed by the Court of Queen’s Bench under a version of

section 521 of the Criminal Code that is modified to apply to youths by virtue of sections 28 and 140 of the YCJA . [ 43 ] Because C.M.S. is bound by an undertaking under

section 31 of the Act, Crown counsel also has the option of making an application in writing to a youth justice court judge under section 31(4) of the YCJA . If the Crown is successful in such an application, a de novo bail hearing under sections 28 to 31 of the Act, pertaining to the charges for which C.M.S. has previously been released, can occur before a youth justice court judge. ________________________ S.S. Anand, J.