R. v. X.X., 2018 ONCJ 820

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

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

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

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

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

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. X.X. , 2018 ONCJ 820 DATE: November 22, 2018 COURT FILE No.: Toronto Y A7 Y30673 BETWEEN: HER MAJESTY THE QUEEN — AND — XX, a young person Before Justice M.L. Cohen Heard on October 29, 30 and November 5, 2018 Reasons for Judgment released on November 22, 2018

Lisa Jacek............................................................................................. counsel for the Crown Michael Freidberg................................................................. counsel for the defendant XX These reasons have been edited; certain portions have been removed, pending completion of the young person’s trial, to comply with a publication ban under s. 517 of the Criminal Code COHEN, M. L. J.: [ 1 ] This is my ruling on an application by a young person, XX, for a review of his detention order based on a material change in his circumstances.

XX asks that his detention order be vacated and that he be released on a surety bail with conditions. The Crown asks that XX’s detention continue. [ 2 ] [This sentence has been removed pending the conclusion of the young person’s trial, in compliance with a publication ban imposed under s. 517 of the Criminal Code .] XX was arrested two months later, and charged with second degree murder. [This sentence has been removed pending the conclusion of the young person’s trial, in compliance with a publication ban imposed under s. 517 of the Criminal Code .] [ 3 ] XX had his judicial interim release hearing before me.

On February 12, 2018, I ordered that he be detained. [This sentence has been removed pending the conclusion of the young person’s trial, in compliance with a publication ban imposed under s. 517 of the Criminal Code .] [ 4 ] [This paragraph has been removed pending the conclusion of the young person’s trial, in compliance with a publication ban imposed under s. 517 of the Criminal Code .] [ 5 ] Second degree murder is an offence listed in s. 469 of the Criminal Code and referred to in s.522 of the Code .

Pursuant to s. 522(1), an adult charged with second degree murder can only be released by a superior court judge. The situation is different for a young person. The Youth Criminal Justice Act provides at s. 33(8) that where a young person has been charged with an offence referred to in

section 522 of the Code , a youth justice court judge, and no other court, judge or justice, has jurisdiction to order his/her release. Thus a young person charged with murder has his bail hearing in the youth justice court. [ 6 ] XX returned to this court for a bail review application, and, on November 5, 2018, hearing on XX’s application, I ordered that XX be released on a surety bail with conditions. At that time I gave oral reasons for my decision, and indicated that I would be providing written reasons to follow.

These are my written reasons. [ 7 ] As I have indicated, XX asked for a review of his detention order based on material change in circumstances. Whether this court can grant such a remedy is unclear. There is no specific provision in the Youth Criminal Justice Ac t permitting a youth justice court judge to review a detention order in a murder case made by a youth justice court, nor is there a specific provision permitting a review of a judicial interim release by a youth justice court based on a material change in circumstances in a murder case. Finally, in cases involving

section 469 offences, the YCJA provides that a review of a judicial interim release order made under section 33(8) must be made to the Court of Appeal in accordance with s.33(9) of the Act [1] . [ 8 ] The Crown and the defence have consented to my assuming jurisdiction in this bail review, and I have exercised that jurisdiction. However it is trite law that as a matter of principle, jurisdiction cannot be conferred by consent. [2] Accordingly in this ruling I intend to address the jurisdictional issues prior to addressing the merits of the application.

In order to do so, it is necessary that I set out some of the provisions in the Youth Criminal Justice Act which affect bail hearings in s. 469 cases. As will be seen, these provisions directly affect my jurisdiction to determine the bail review application. [ 9 ] Pursuant to s.14 of the YCJA , a youth justice court has exclusive jurisdiction over offences alleged to have been committed by young persons. [3] A “youth justice court” is defined in s. 13 of the Act , as “any court that may be established or designated by or under

an Act of the legislature of a province, or designated by the Governor in Council or the lieutenant governor in council of a province, as a youth justice court” for the purposes of the Act .

In Ontario, the Courts of Justice Act designates the Ontario Court of Justice as a youth justice court for the purposes of the Youth Criminal Justice Act [4] . [ 10 ] Although the youth justice court is the court having exclusive jurisdiction over offences committed by young persons, there is an exception in the YCJA for offences in which the Attorney General wishes to seek an adult sentence. [ 11 ] Under s.64(1) of the Act , the Attorney General has the authority to seek an adult sentence for young persons over the age of 14 who are found guilty of offences for which adults are liable to a term of imprisonment exceeding two years.

A decision by the Attorney General to seek an adult sentence is a matter of great consequence. For example, under the YCJA, a young person found guilty of second degree murder is liable to a term of imprisonment not to exceed four years, followed by a period of supervision in the community: s.42 (2)(q)(ii) of the YCJA . If a young person is found guilty of second degree murder and sentenced as an adult, he will receive a sentence of life imprisonment: s.235(1) of the Criminal Code .

[12] A decision by the Attorney General to seek an adult sentence also has implications for the judicial interim release hearing of ayoung person charged with murder. If the Attorney General has given notice of her intention to seek an adult sentence for the offence,the young person must be put to an election pursuant to section 67(2) of the Act.

The election gives the young person the followingoptions: You have the option to elect to be tried by a youth justice court judge without a jury and without having had a preliminary inquiry; oryou may elect to be tried by a judge without a jury; or you may elect to be tried by a court composed of a judge and jury. If you do notelect now, you are deemed to have elected to be tried by a court composed of a judge and jury.

If you elect to be tried by a judge withouta jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge andjury, you will have a preliminary inquiry only if you or the prosecutor requests one. [13] Pursuant to s. 13(2) and (3) of the Act, if a young person elects to be tried by a judge who is not a youth justice court judge, withor without a jury, jurisdiction over the young person is transferred to the superior court after the election is made.

The superior court isdeemed to be a youth justice court, and the superior court judge is deemed to be a youth justice court judge “for the purpose of theproceeding”. This reference to “the proceeding” has been interpreted in Ontario to encompass all aspects of the case after the election ismade. See: R. v. J.B., [2012] O.J. No. 4132 (Ont.

S.C.J.) (my emphasis). [14] To be clear, although s. 13(2) and (3) deem superior court judges to be youth justice court judges “for purposes of theproceeding”, those sub-sections do not create an independent jurisdiction in the superior court to conduct bail hearings prior to theelection. As Justice Molloy sets out in J.B., it is only after an election is made, that a superior court justice is deemed to be a youthjustice court judge.

As Justice Molloy concludes in J.B., at para. 28, notwithstanding s.33(8), once jurisdiction is transferred to thesuperior court, that court has the authority to conduct judicial interim release hearings since …logic would support an

interpretation that bail should be dealt with in the court that will be conducting the trial. [15] As will be seen, this proposition has special resonance in the bail review application before me. [16] In the case before me, the Attorney General has indicated that she does not intend to seek an adult sentence. Because theAttorney General is not seeking an adult sentence, the trial on the second degree murder charges will be heard in the youth justice courtby a youth justice court judge. There is no election.

As a concrete expression of that intention, the Crown has consented to a trial date inApril in the Youth Justice Court and XX will be tried by a youth justice court judge. Thus, to quote Justice Molloy, logic supports aninterpretation that, if legally permissible, subsequent bail applications in this case should be dealt with in the youth justice court which isthe court conducting the trial. [17] These considerations should leave jurisdiction over the judicial interim release proceedings in XX’s case squarely in the OntarioCourt of Justice youth justice court.

However the bail review scheme in the YCJA introduces an element of ambiguity into thisproposition. I turn now to the judicial interim release regime in the YCJA. [18] As a matter of practice, most judicial interim release hearings for young persons charged with offences are heard by a justice ofthe peace. However, as a matter of law, where the offence is murder the judicial interim release hearing must be determined by a youthjustice court judge. [19] A justice of the peace is not a youth justice court judge.

Section 33 (1) of the Act provides that where an order has been made ona judicial interim release hearing by a justice who is not a youth justice court judge, an application can be made, at any time after theorder is made, to a youth justice court judge for the release from or detention in custody of the young person. The youth justice courtjudge then hears the matter as an original application (bail de novo). Section 33(1) thus provides a young person who has been detainedby a justice of the peace with an opportunity to apply for release at a second judicial interim release hearing.

The hearing before theyouth justice court judge is not a review of the original decision by the justice of the peace, and the young person has no burden todemonstrate a material change in circumstances, or error of fact or law. The prosecution bears the burden throughout. [20] I will note here parenthetically that the opening words of section 33(1) refer to “...an order ... made under

section 515 (judicialinterim release) of the Criminal Code in respect of a young person by a justice who is not a youth justice court judge”. In fact, since theYCJA was amended in 2012, bail hearings for young persons have been governed by s. 29 of the Act which sets out a different test fordetention or release than s.515.

Section 29 is a complete code of the principles governing bail hearings at first instance. The provisions ofthat

section govern the hearings before the justice of the peace, and the youth justice court judge on the section 33(1) hearing. It is clearthat the reference to s.515 of the Criminal Code in s.33 (1) is meant to refer to a judicial interim release application under s.29 of theYouth Criminal Justice Act. As there is an apparent drafting error, it has become routine for the court to construe s. 29, as governing theproceedings in order to carry out carry out parliament’s obvious intention: R. v. Paul (1978), (ON CA), 39 C.C.C. (2d)129 (Ont.

C.A.). [21] As we have seen, pursuant to s. 33(8) of the Act, the only court with jurisdiction to hear the initial bail hearing in a murder caseis a youth justice court. XX is not in a position to apply for a de novo hearing under s. 33(1) because his original judicial interim releasehearing was before a judge. The only provision for a review of his detention order is under s. 33(9) of the Act. That

section provides thatthe decision of the youth justice court under section 33(8) may be reviewed in accordance with s. 680 of the Code with any modificationsthe circumstances may require. There are difficulties with this procedure. [22] Pursuant to s.680 A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal undersection 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court andthat court may, if it does not confirm the decision,

(

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made. [23] As can be seen,

Section 680 involves a two stage process in which there is an initial vetting of the application by the chief justice of the Court of Appeal, and then a review by that court, if so directed by the chief justice. In The Law of Bail in Canada, 3rd Edition,Justice Gary Trotter, now Trotter, J.A. of the Court of Appeal, has described the s.680 review process as “cumbersome anddiscretionary”. Given the obvious expense and complexity of such a proceeding, a s.680 review will be an impractical remedy in manyyouth cases. [24] In the adult criminal justice system a second review process has developed. This process is available to adult accused chargedwith

section 522 offences who seek a variation of bail based on material change in circumstances. These accused are able to bringsuccessive bail applications in the superior court, the court in which they will be tried. It appears that in Ontario this second reviewprocess is not available to young people charged with murder whose proceedings are in the youth justice court. Why has this secondprocess developed in the adult criminal system? One reason lies in the ambit of the s.680 review. [25] In R. v. Daniels, (ON CA), [1997] O.J. No. 4023 (Ont. CA), in the context of a s.679 application, Doherty,J.A. states that

section 680 creates and serves an “appellate function” providing a means for an applicant to challenge the initial order(para. 25). While such a review may not exclude a review based on material change in circumstances, it may not contemplate it. InJustice Doherty’s words (at para. 26) : The broad remedial powers found in s. 680(1) do not suggest that the review provided by s. 680 is other than an appellate review. Thepower to "vary" in s. 680(1)(

a) refers to the reviewing court's power to make the same type of order as was made at the initial hearing butto vary the specifics of that order. For example, the reviewing court could hold that an appellant was properly released on bail but alterthe conditions of that release. The power to "substitute" found in s. 680(1) (

b) recognizes that the reviewing court may make an entirelydifferent order than that made on the initial bail application. For example, when the reviewing court determines that bail should havebeen refused, it substitutes an order dismissing the application for bail for the initial order granting bail. It is noteworthy that while s.680(1)(

b) gives the reviewing court a wide authority, it still directs that the court make the order which should have been made on the s.679 application. (my emphasis) [26] In R v. R.D., 2010 ONCA 899 , [2010] O.J. No. 6111 (C.A.), Rosenberg, J.A. adopted a similar

interpretation of s.680 ina case involving an application for review of a detention order by a young person charged with second degree murder. Justice Rosenbergstates at para. 23 that For the purposes of this application, the standard of review is adequately set out in R. v. West, (ON CA), [1973] 1 O.R.211 (C.A.). As indicated at p. 217 of the reasons for decision in that case, the s. 680 review takes the general form of an ordinary appeal.Thus, this court can intervene at least on errors of law and principle.

The court can also grant leave to either party to produce newevidence where appropriate.(my emphasis) [27] While the prospect exists that the court of appeal will grant leave to admit fresh evidence of material changes in circumstances,the jurisprudence suggests this type of review is not the focus of the s.680 process. For example, the “appellant function” analysis ofs.680 is consistent with the approach of Moldaver, J. in R. v.

Oland, 2017 SCC 17, where he notes, at para.64, that in consideringwhether to permit a review under s.680 ...the chief justice should consider directing a review where it is arguable that the judge committed material errors of fact or law inarriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances. [28] Certainly any exercise of jurisdiction in the court of appeal to exercise a material change based review function does not excludean alternate, more accessible process. In R. v. Saleh, (ON SC), [2007] O.J. No. 1375 (Ont.

S.C.J.) Powers, J. of thesuperior court dealt with an application for a review of a detention order in a murder case based on material change in circumstances.Justice Powers was the judge that had made the original order. The Crown argued that the application had to be made to the Court ofAppeal under s.680 as required by s.522 (4) of the Code, the counterpart to s. 33(9) of the YCJA. In rejecting this argument, Powers, J.held that under the reasoning in Daniels, the superior court had the jurisdiction to entertain the application.

He says at para. 40, that I conclude, on the basis of the authorities, that, in Ontario, there is a long established right in an accused who is charged with an offencelisted in s. 469, to apply, prior to his/her trial, to a judge of this Court to vary an earlier decision of another judge of this Court, or thesame judge, where the correctness of the earlier decision is conceded and where the grounds for the variance are a change incircumstances of a material nature. [29] In the case of R. v. Whyte, 2014 ONCA 268 , [2014] O.J.

No. 1633 (C.A.), at. paras. 21 and 22, Tulloch, J.A. describesthe current bail review practice as it relates to adult accused, and the reasoning behind it: The relevant practice in Ontario can be summed up as follows: Where an applicant is detained pursuant to a charge for an offence listedin s. 469 of the Code, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant'sgrievance.

Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, theproper course is to seek review by a court of appeal under s. 680 of the Code: R. v. Daniels (1997), (ON CA), 35 O.R.

(3d) 737 (C.A.), at p. 746. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change incircumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d)309, at para. 5; R. v. Klymchuk (2007), (ON SC), 220 C.C.C. (3d) 439 (Ont. S.C.), at pp. 447-48; R. v. Saleh (2007), (ON SC), 252 C.C.C. (3d) 521 (Ont. S.C.).

This second avenue reflects the "considerable common sense in returningto the originating court, creating an evidentiary record and obtaining the views of a judge of first instance on the impact of the new orchanged information on the issue of interim release": R. v. Boyle, (ON CA), [2006] O.J. No. 5094 (C.A.), at para. 3.(my emphasis) [30] The jurisprudence in Daniels, Whyte, and other cases effectively authorizes adults accused of

section 469 offences to makesuccessive applications for release or bail variations in the superior court based on material change in circumstances, rather than pursuinga review under

section 680. This procedure is available notwithstanding the clear wording in s.522 (4) that an order made under thatsection is not subject to review, except as provided in

section 680. Again, it is important to recall that s.522 (4) of the Code and section33(9) of the YCJA are almost identical. [31] In Daniels, Doherty, J., expressed concerns about a process (the s.680 process) which does not easily encompass adetermination based on material change in circumstances. In dealing with this question at para. 34, he says An

interpretation of s. 679 which permits successive applications where circumstances change also advances the policy underlying s.679. As indicated earlier, the goal is to release those, and only those, who meet the criteria in s. 679(3). In some cases, an applicantcannot meet those criteria at the time of the application, but there is reason to believe that the circumstances may change before theappeal is heard.

As presently interpreted in this province s. 679 permits a judge to dismiss the application for bail confident that shouldthe circumstances change, the appellant will be able to have the question of his further detention resolved quickly by way of a secondapplication under s. 679. A judge could not be so confident that an initial refusal of bail would do no injustice if the appellant's onlyremedy, should the circumstances change, rested in a s. 680 application. (my emphasis) [32] Justice Doherty’s reflections go to the heart of the concern in the case before me.

XX concedes the validity of the originaldetention order, but seeks a review on the basis of a material change in circumstances. The combined effect of section 33(9) and section680 suggest there is only one route available to him to apply for a reversal of his detention order – an application to the court of appealfor a review. If XX were an adult, it would be open to him to apply for a review based on a material change in circumstances to thesuperior court – the court where he will be tried and the court that made the original detention order, in effect bypassing the s.680 reviewprocess.

Yet there is no established alternate route for youth in Ontario. Thus, a young person charged with a

section 469 offence has amore circumscribed capacity than an adult to apply for a review of his detention order based on material change in circumstances. [33] The manifest unfairness of this state of affairs requires a clarification of the bail review provisions in the YCJA.

In my view, itcannot be the case that a remedy as essential as an application for a bail variation based on material change of circumstances, even in thecase of a charge of second degree murder, can be readily available to an adult accused, and not to a young person. [34] All accused persons are presumed innocent of their charges, and applications to vary or reverse judicial interim release ordersshould be accessible without undue complication or delay.

Such access is essential to any “enlightened criminal justice system.”[5] It isnot unusual for the circumstances of accused persons or their sureties to change during the months or even longer between the releaseorder and the trial: R. v. Seti-Mayinga, [2001] O.J. No. 6335 (S.C.). As the Newfoundland Court of Appeal pointed out in R. v. T. (G.J.), (NL CA), [1999] N.J. No. 46, The circumstances that give rise to the release are not necessarily static throughout the pretrial period.

Changes in circumstances maygive an entirely new complexion to the continued reasonableness of the release conditions, and it is difficult to think that Parliamentintended to complicate or delay the opportunity to respond appropriately one way or the other, to changed circumstances. [35] The process for reviewing bail orders for young persons based on material change in circumstances should be flexible andaccessible. This proposition is especially important because lengthy pre-trial detention and overly restrictive bail conditions can havelasting negative effects on young persons.

The youth justice system must be sensitive to the potential harms to a young person that canarise from prolonged incarceration and separation from his/her family.

In R.D., at para. 54, Rosenberg, J.A. noted that murder cases andother very serious cases ... tend to take much longer to come to trial, meaning that the young person may be in custody, away from parental and other familysupport, for years during a critical time in their development. [36] Material changes in circumstances during the pre-trial period are inevitable for young persons whose maturation process itselfmay be expected to bring about changes in their needs, as well as their understanding, foresight and judgment.

In addition, as youngpeople are usually dependent on their parents or caregivers, they are particularly vulnerable to changes in a surety’s circumstances whichmay require a change to the initial order. [37] Principles in the YCJA, and the Charter guarantee of reasonable bail, are relevant to this analysis. As stated by Rosenberg, J.A.in R.D., judicial interim release in youth cases engages the principles of reintegration and the need to recognize the greater dependencyand reduced level of maturity of young persons.

As well, under the YCJA, young people are entitled to enhanced procedural protections,and to special guarantees of their rights and freedoms. These rights would include ready access to a responsive bail review process. [38] The process for reviewing bail orders for young persons based on material change in circumstances should be at least as flexibleand accessible as it is for adults. [39] In my view, the answer to the problem of an unduly complicated bail review process lies within the YCJA. Accordingly, I nowturn to the means by which the jurisdictional issues can be resolved. [40]

Section 28 of the YCJA provides that

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

Part XVI (compelling appearance of anaccused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act. [41] This

section means that the provisions of

Part XVI of the Criminal Code will apply in a judicial interim release hearingprovided they are not inconsistent with or excluded by the Act. The YCJA governs the use that may be made of these provisions. [42]

Part XVI provides a scheme which is intended to allow for a quick determination of whether an accused should be in custodypending his trial, and for reconsideration of that question at various stages of the criminal process: R. v. Saracino, (ON SC), [1989] O.J. No. 28 (Ont. H.C.), per Doherty, J. [43] Having considered the jurisprudence in Daniels, Whyte and other cases, I conclude that s. 33(9) of the YCJA, the counterpart of s.522(4) of the Code, does not exclude other avenues by which a young person can seek a review of his/her detention order on a similarbasis. Indeed s. 28 of the Act provides for this very possibility.

Section 28 says that

Part XVI (compelling appearance of an accused andinterim release) of the Criminal Code applies to the detention and release of young persons under YCJA. [44]

Section 523 is a provision in

Part XVI of the Code. Section 523(2) provides for orders vacating prior orders for release ordetention under certain circumstances. Section 523(2)(c) (iii) allows for an application to vacate a detention order to the court where anaccused is to be tried. Unless s. 523(2)(c) (iii) is inconsistent or excluded by the Act, it applies to the detention and release of youngpersons under the YCJA. [45] For convenience, I set out here the applicable portions of s.523 (2)(c): Despite subsections (1) and (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, (

b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, otherthan an offence listed in

section 469, or (

c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that wouldotherwise apply pursuant to subsection (1.1), without such consent, at any time (

i) where the accused is charged with an offence other than an offence listed in

section 469, the justice by whom an order wasmade under this Part or any other justice, (ii) where the accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminaljurisdiction for the province, or (iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judgeor justice considers to be warranted. (my emphasis) [46] In my view, s. 523(2) (c) (iii) permits XX to apply to the youth justice court for an order vacating his detention order andreleasing him on a surety bail with conditions. [47] I find that the preconditions to my exercising jurisdiction under section 523(2)(c) (iii) have been satisfied.

XX has applied for anorder vacating his detention order. In addition, the matter is before me with consent of the prosecutor and the accused, although they arenot agreed upon the order they wish me to make. Finally, as I explained earlier in this ruling, the youth justice court is the court beforewhich XX is to be tried. [48] It may be argued that, because XX is charged with a s.469 offence, the application must be brought before a superior court. Idisagree. [49] Section 523(2)(c)(

i) permits applications to vacate detention orders where an accused is charged with non-section 469 offencesto the justice who made the order or any other justice. [50] Section 523(2)(c)(ii) permits applications to vacate detention orders where the accused is charged with

section 469 offences to ajudge of or a judge presiding in a superior court of criminal jurisdiction for the province. [51] Section 523(2)(c)(iii) contains no such limitations. The intention apparent on a plain reading is that, irrespective of whether anoffence is or is not listed in s.469, an application to vacate a detention order may be made at any time to the court, judge or justice beforewhich or whom an accused is to be tried. The court in which XX is to be tried is the youth justice court. [52] This approach was favoured by Scott, J., Chief Justice of the Manitoba Court of Appeal in the case of R. v.

H. (L.I.), [2001]CarswellMan 309. In H. (L.I.), a 14 year old charged with second degree murder was denied bail by a youth court judge under theprecursor to the YCJA, the Young Offenders Act (“YOA”). The young person applied for a review to the Manitoba Court of Appealpursuant to s. 8(9) of the YOA, which is identical to section 33(9) of the YCJA. The essence of the application was that there had been amaterial change in circumstances since the original hearing.

Scott, C.J.M. held the appropriate procedure was an application undersection 523 of the Code in the Youth Court. [53] Chief Justice Scott’s reasoning is set out at paras 5 - 9: … the question arises whether the more appropriate course of action for the young person is not to return to the youth court under sec.

8(8) of the Young Offenders Act. If the young person was an adult, the proper recourse would be for counsel to return to the judge at first instance to consider afresh the application for judicial interim release in light of the changed circumstances. Such an application is authorized by sec. 523(2) of the Code . Does it make any difference that the appellant in this case is a young person? Counsel for the young person expressed a concern that sec. 8(9) of the Young Offenders Act might constitute the only ground for review. I agree with this

interpretation except that an application for a rehearing is not a "review" of the earlier decision under sec. 680 of the Code . Section 8(8) of the Young Offenders Act refers to a young person "charged with an offence referred to in

section 522 of the Criminal Code " being released from custody "under that section." Given this provision, it seems to me that sec. 523(2) must also be applicable. There is no logical or other reason why the process under the circumstances should work any differently for a young person as opposed to an adult.

By proceeding with a new hearing before the youth court judge, the young person and the Crown can still apply for a review under sec. 680 of the Code , but with the benefit of the reasons, on the merits, of the youth court judge respecting the "new circumstances." This would not be so if the review was to proceed now before this court, even assuming that evidence of the changed circumstances was properly before this court. As we have just seen, a review under sec. 680 is based on the record of the proceedings below.

When the real issue is whether there are changed circumstances since the denial of judicial interim release that are sufficiently persuasive to justify granting bail, the authorities earlier referred to and others to like effect indicate that a sec. 680 review is simply not the appropriate procedure. In my opinion, sec. 8(8) of the Young Offenders Act , in providing for the release of the young person under sec. 522 of the Code , incorporates the procedures set forth in sec. 523(2) of the Code .

This use of the procedure under sec. 523(2) of the Code is precisely the kind of adaptation that is contemplated by sec. 51 of the Young Offenders Act . It enables the youth court judge to deal under sec. 522 with a fresh application for judicial interim release based not on errors made at the time of the earlier application, but on new evidence of a material and substantial change in circumstances. [ 54 ] The approach in H(L.I.) was found to have “considerable merit” by the Manitoba Court of Appeal, at par. 41, in R. v.

Massan, 2012 CarswellMan134 , which held, at par. 37(b), that where the sole ground for the review is changed circumstances, while the court does have jurisdiction, the practice has developed, supported by the concept of judicial efficiency, to have the matter dealt with by a judge of the court that granted or refused the original bail, preferably the same judge (see Daniels ).

There is opportunity for the judge conducting the assessment of whether the matter should proceed for review to refer the matter back at that stage (see L.I.H. ). [ 55 ] Returning to the application of s.28, of the YCJA , I find that s.523 is not specifically excluded in the YCJA , it does not conflict with any principle or policy of the Act, and it does not frustrate the operation of section 33(9). Indeed I find that s. 523 is reconcilable with s. 33(9) under the reasoning in Daniels and Whyte . The s.680 review provided for under section 33(9) is an exercise of an appellate function.

Where the correctness of the original order is conceded, a s. 523(2) review based on material change in circumstances is a rehearing and not an exercise of an appellate function. Logic and common sense support an

interpretation that bail should be dealt with in the court that will be conducting the trial [ 56 ] The merits of the

section 523 process are clear. Section 523(2) (c)(iii) allows a simple application to the youth justice court where the young person had his initial bail hearing and where he will be tried. The procedure is not cumbersome, time-consuming or expensive. It provides ready access to justice when a change is needed. [ 57 ] Relying on

section 523 in these circumstances is also consistent with section 33(8) of the Act , which gives youth justice court judges, exclusive jurisdiction over bails for young persons charged with s. 469 offences, and preserves that jurisdiction under s.13 until an election is made, or as in the case before me, until completion of the case. [ 58 ] Reading

section 28 and section 523(2) (c)(ii) together is also consistent with the principles and values of the YCJA to which I have already made reference . [ 59 ] As I have noted, young persons charged with criminal offences have special guarantees of their rights and freedoms, including their Charter right to reasonable bail.

It is a matter of fundamental justice that where circumstances may have changed justifying a change in the original order, bail review procedures for young persons enable timely access to a court. [ 60 ] Considering the foregoing, I have determined that the court has jurisdiction under section 523(2)(iii) of the Code and s. 28 of the YCJA , to vacate the detention order and to fashion a new order.

A new order will be warranted if XX is able to demonstrate a material change in circumstances addressing the concerns raised in my reasons for ordering his detention. [Paragraphs [61] through [75] and Appendix A have been removed pending the conclusion of the young person’s trial, in compliance with a publication ban imposed under s. 517 of the Criminal Code .] Released: November 22, 2018

Signed Justice M.L. Cohen [1] 33(9) provides that “A decision made by a youth justice court judge under subsection (8) may be reviewed in accordance with section680 of the Criminal Code and that

section applies, with any modifications that the circumstances require, to any decision so made.” [2] R. v.

Dudley, 2009 SCC 58 , [2009] 3 S.C.R. 570 [3] Per s.14 (1) of the YCJA: Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act, ayouth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was ayoung person, and that person shall be dealt with as provided in this Act. [4] S.38(3) provides that the Ontario Court of Justice is a youth court for the purposes of the Young Offenders Act (Canada) and a youthjustice court for the purposes of the Youth Criminal Justice Act (Canada).