R. v. JTC, 2013 NSSC 318

SUPREME COURT OF NOVA SCOTIA Citation: R. v. JTC, 2013 NSSC 318 Date: 20101007 Docket: CRH No. 419349 Registry: Halifax Between: JTC Appellant v. Her Majesty the Queen Respondent LIBRARY HEADING RESTRICTION ON PUBLICATION s.486(3) Criminal Code of Canada s.110(1) Youth Criminal Justice Act Judge : The Honourable Justice Peter P. Rosinski Heard: September 23, 2013 in Halifax, Nova Scotia Written Decision: October 7, 2013 Subject: S.520 Criminal Code Review of bail denied and bail revoked decisions in the context of youths under ss.28, 29 and 31 of the Youth Criminal Justice Act

Summary: JTC was charged as a youth with offences, and most notably, aggravated sexual assaults on two young girls –

one alleged in July 2011, and the other in Spring of 2012. While pending trial set for September 5, 2013, on the 2011 charges, JTC was charged with the 2012 charges. The Crown opposed hisrelease on the 2012 charges and sought his release on the 2011 charges be revoked. The Youth Court Judge detained JTC on both sets ofcharges - bail denied and bail revoked respectively. JTC sought a review of both by this Court pursuant to s.520 of the Criminal Code of Canada. Issue: (

i) Does this Court have jurisdiction under s.520 to review both the bail denied and bail revoked decisions? (ii) What is the state of the law regarding the effect of the accused’s non-disclosure of his HIV(+) status to sexual partners, upon anyconsent to sexual relations given by them pursuant to s.265(3)(

c) and 273.1 of the Criminal Code of Canada? (iii) What is the nature of this Court’s jurisdiction to “review” the Youth Court Judge’s decision? It is a de novo hearing or akin to anappeal of the Youth Court Judge’s decision? (iv) Should the decision of the Youth Court Judge to detain JTC pending his October 28 to November 6, 2013 trial on the 2012 chargesbe confirmed? Result: (

i) Since the trial had started regarding the 2011 charges, this Court has no jurisdiction to review the YouthCourt Judge’s decision - only the trial court can re-examine his detention on those charges. (ii) For an accused with a “low viral load” [a measure of the risk of HIV transmission] who uses a condom during sexual relations, thefailure to disclose his HIV(+) status does not vitiate the consent given by his sexual partners per s.265(3)(

c) of the Criminal Code - R. v.Mabior 2012 SCC 47 , [2012] 2 SCR 584. It is unclear whether an express consideration of the definition of “consent”contained in s.273.1 regarding sexual offences would render a different result. This issue may shortly be examined by the SupremeCourt of Canada in its consideration of R. v. Hutchison 2013 NSCA 1 (albeit on different facts). (iii) Generally, s.520 reviews are a hybrid of a de novo hearing and an appellate like review of the trial court’s decision.

In thecircumstance of this case particularly, the “review” approaches closer to a de novo hearing. (iv) The decision of the Youth Court Judge to detain JTC on the 2012 charges was confirmed on both the secondary ground and unders.29(2)(b)(ii) of the Youth Criminal Justice Act and the tertiary ground under s.29(2)(b)(iii) of the Youth Criminal Justice Act. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET.

Supreme Court of Nova Scotia Citation: R. v. JTC, 2013 NSSC 318 Date: 20131007 Docket: CRH No. 419349 Registry: Halifax Between: JTC Applicant v.

Her Majesty the Queen Respondent Restriction on Publication s.486(3) Criminal Code of Canada s.110(1) Youth Criminal Justice Act Judge: The Honourable Justice Peter Rosinski Heard: September 23, 2013 in Halifax, Nova Scotia Counsel: Kai Glasgow, Nova Scotia Legal Aid, for JTC Alex Keaveny, Public Prosecution Service of Nova Scotia, for the Crown Introduction [ 1 ] JTC was charged on an information sworn October 6, 2011 that he did on July 7, 2011 at Indian Harbour Nova Scotia: commit aggravated sexual assault on PC endangering her life contrary to S. 273 (2) (b); and also did for a sexual purpose touch PC , a person under the age of 16 years directly with his penis contrary to S. 151 of the Criminal Code ; and that he did breach a probation order made June 3, 2011 by willfully failing to keep the peace and be of good behavior, and to “not take, use or possess, alcoholic beverages” contrary to S. 137 of the Youth Criminal Justice Act (hereinafter “the 2011 charges”). [ 2 ] JTC was also charged on an information sworn June 14, 2013 that he did on the dates between April 1 and June 1, 2012 at Dartmouth, Nova Scotia, commit an aggravated sexual assault on SN endangering her life contrary to S. 273(2)(

b) of the Criminal Ccode ; and also did thereby breach a probation order made on June 3, 2011 by willfully failing to keep the peace and be of good behavior contrary to S. 137 of the Youth Criminal Justice Act (hereinafter “the 2012 charges”). [ 3 ] As a result of his arrest and appearance in Court in custody on June 14, 2013 the Crown determined that his existing bail in relation to the 2011 charges should be revoked, and that they wished a show cause hearing in relation to the 2012 charges. [ 4 ] On June 26, 2013 Judge Jamie S.

Campbell of the Youth Court heard those two matters together, and concluded that it was necessary that JTC be detained. JTC now asks this Court to review those decisions pursuant to S. 520 of the Criminal Code . [ 5 ] In his decision Judge Campbell concluded: The plan is that he would reside at Phoenix house where he would live in the city of Halifax. There would be no person who would be his surety in this case. He would be essentially on his own recognizance. And while there could be efforts there to keep some level of control over him, there would be no one whose job it is to make sure he stays out of trouble.

That’s a factor I have to take into account. So I have to consider all of those things, bearing in mind the concern about the presumption of innocence and the right to bail and bearing in mind the protection of the public in this situation. Based upon the allegations that have been made and all those considerations

here, I’m satisfied that there is a substantial likelihood that if he were released he would commit a serious offence, and I’m not satisfied that the plan in place here, residing at Phoenix house, would reduce that level… Reduce that risk below the level of being substantial.

On that basis then, the application for bail was denied. [pp. 38(18)-39(14) transcript] [ 6 ] For certainty, Judge Campbell went on in response to an inquiry by the Crown regarding the purported S. 524 of the Criminal Code application to revoke bail, to note that “he’s bail denied on the April 1 – June 1, 2012 matter, and bail revoked on the July 7 [2011] matter.” [ 7 ] On September 10, 2013 JTC filed a “Notice of Hearing” regarding an Application for Bail Review pursuant to S. 520 of Criminal Code . [ 8 ] With the Notice he included his own affidavit, as well as the affidavit of his great aunt, NJ, as a proposed surety/responsible person, as well as the transcript of his June 26, 2013 hearing before Youth Court Judge Jamie S.

Campbell who ordered that he be detained in custody. Judge Campbell was limited to the factual representations made by counsel for the Crown and Defence, as no witnesses testified before him.

Also enclosed were certified copies of Informations in relation to offences alleged: July 7, 2011; and April 1 through June 1, 2012. [ 9 ] In its request to this Court for a review of the detention of JTC, according to the written brief and oral arguments of JTCs’ counsel, JTC did not allege any error by Judge Campbell in Youth Court, but rather suggested there had been a material “change in circumstances”. [ 10 ] Argument about whether there had been a material change in circumstances that should see JTC released rather than detained until his trial ended, was supported before me by the following materials and testimony: 1.

Transcript of the June 26, 2013 bail and bail revocation hearing in relation to the “2012 charges” and “2011 charges” respectively; 2. Exhibit “C-1” – which is a “Public Prosecution Service – Bail Report” for JEIN person ID: 677035, which shows it referring to JTC having a date of birth of February 12, 1995 and consisting of 18 pages updated to September 20, 2013; 3.

The factual representations by the Crown Attorney before me, as supplemented by counsel for JTC regarding the circumstances of the 2012 charges which are set for trial October 28, 29 th , 30 th , and November 5 th and 6 th , 2013; and the evidence put to the Youth Court on September 5 th , 6 th , 9 th and 20 th, 2013 during his trial, the outcome of which will be determined by the trial judge on October 7, 2013 at 2 p.m.; 4. For the Defence, the viva voce evidence of JTC and NJ, his great aunt,who lives in Indian Harbour, Nova Scotia; 5.

For the Crown, the viva voce evidence of Jacqueline [Jackie] Garrett who has for approximately the last five years been the Minister of Community Services’ agent as the legal guardian for JTC. [ 11 ] In many respects, though a S. 520 bail review has been characterized as a hybrid between a de novo hearing and an appellate review of the bail judge’s approach, reasoning and conclusions – see R. v. Mukpo 2012 NSSC 107 at paras. 30–31 ; R. v. Gobeil [1997] NSJ 592 (SC) and R. v.

Charter 2008 NSSC 299 at para. 20 - in these circumstances it tends more toward a de novo hearing because there is an allegation of a material change in circumstances, and whereas Judge Campbell only had the bare representations of counsel available to him to make his decision, I have more up-to-date and concrete factual representations to supplement those made to him, as well as having heard the viva voce testimony of the witnesses, thereby putting me in a position to assess their credibility. [ 12 ] Before proceeding further I must address a preliminary jurisdictional issue.

Preliminary Jurisdictional Issue [ 13 ] The Notice of Review herein suggested that S. 520 of the Criminal Code was applicable to both the 2012 [bail denied] charges as well as the 2011 [bail revoked] charges. [ 14 ] At the hearing I brought a concern to counsels’ attention. My concern is that this Court may not have jurisdiction to “review” the 2011 charges. [ 15 ] This concern was based upon a careful reading of S. 520 of the Criminal Code :

(1) If a justice [Provincial Court Judge, or Youth Court Judge in this case per

section 28 of the YCJA], or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2) (b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order .

[16] In a quirk of timing, JTC’s trial on the 2011 charges had started on September 5th and evidence concluded on September 20th,with a decision pending October 7, 2013. [17] Thus it would appear that neither JTC, under S. 520, nor the Crown under S. 521, can apply to this Court for a review of bailonce “the trial of the charge” has started. [18] I note that this is consistent with S. 523(2) of the Criminal Code regarding requests for variations to bail [see R. v. Mukpo2012 NSSC 107], where: under subsection (

a) it reads: “the court, judge or justice before whom an accused is being tried, at anytime”; or under subsection (

b) it reads: “the justice on completion of the preliminary inquiry in relation to an offence for which anaccused is ordered to stand trial, other than offense listed in sections 469”: may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused,and may make any other order provided for in this Part for the detention or release of the accused until his trial is completed that thecourt, judge or justice considers to be warranted. [emphasis added] [19] I should note as well that while there is some controversy about whether under s. 523(2)(a), the trial must have actuallystarted – “is being tried” has been so interpreted in Nova Scotia R. v.

Hardiman 2003 NSCA 17, paras. 10-15 per Cromwell JA (as hethen was). [20] There was some reference before Judge Campbell to S. 524 of the Criminal Code, which permits the arrest of an accusedwith (on reasonable and probable grounds) or without (on reasonable grounds) a warrant, where those grounds exist that they havecontravened or are about to contravene the provisions of any summons, appearance notice, promise to appear, undertaking orrecognizance issued, given to them or entered into by them, or have committed indictable offense after such documents having beenissued, given to or entered into by an accused. [21] Section 524(3)(b), (8) and (9) require the judge to cancel such documents and order that the accused be detained in custody,but if the accused can show cause, also permit the judge to determine the release circumstances of an accused where they are satisfiedthat the accused has contravened: a summons; appearance notice; promise to appear; undertaking; a recognizance; or there arereasonable grounds to believe that the accused has committed an indictable offence after issuance, being given or having entered intoone of those documents. [22] While S. 524 is referred to by counsel as the basis of an application for “bail revocation”, and S. 524(13) does permit a S. 520review in relation to orders made under Subsection 8 or 9, which could give this Court jurisdiction , it does so only if JTC was broughtbefore the Court pursuant to S. 524.

In spite of the view of others such as in R. v. Ramage (2011) 2011 ONSC 3092 , 273 CCC (3rd) 331 (Ont.SC), at paras. 43-62, I am not convinced that in circumstances such as this, where there is no material on file confirmingwhether the release of JTC was constrained by court order, or more specifically whether JTC was brought before the Court pursuant toS. 524, that this Court should take jurisdiction thereunder. [23] I say this since JTC would not otherwise be without recourse, particularly since S. 523 also permits, at specified times,applications to vary release and detention “on cause being shown”.

Given the circumstances of this case I need not resolve whether S.523 or 524 was legally in play at the time of JTC’s detention before Judge Campbell on June 26, 2013. [24] This is so because while s. 524(13) does make s. 520 applicable, once one moves to s. 520, judges of this Court are in anyevent constrained by the wording of s. 520. That wording, “at any time before the trial of the charge”, is expressly applicable toprocesses arising out of S. 523(2)(

b) as well as 524(8) or (9) pursuant to s. 524(13). Therefore, whether the June 26, 2013 “bailrevocation” hearing is characterized as arising under s. 523(2), or 524(8) or (9), the result is the same: this Court does not havejurisdiction to hear a review of those decisions under S. 520 once the trial has commenced. Section 523(2)(

a) cases are not expresslyincluded in s.520(1); s. 523(2)(

b) cases, while expressly included are not reviewable by this Court once the trial has started; and s.524(13) cases are similarly not reviewable by this Court once the trial has started. [25] In this case, a trial has commenced.

In relation to the 2011 charges, only the trial court has jurisdiction to reconsider JTC’sbail on those charges. [26] Nevertheless, in my consideration of whether there has been a material change in circumstances in relation to the 2012charges since the June 26th bail denied decision, and whether I should exercise my discretion to release JTC pending his trial on the2012 charges, as requested by both counsel, it is appropriate in my view for me to consider as a factual matter the circumstances of the2011 charges.

The Law of Bail Regarding Youths [27] While JTC turned 18 years of age on February 12, 2013, these offences occurred while he was a youth. I reserve commenton whether as a result of s. 28 of the Youth Criminal Justice Act and due to the fact that he was an adult at the time of his bail hearing, heshould be considered an adult and s.515 of the Criminal Code should apply, or he should still have the benefit of ss.29 and 31 of theYouth Criminal Justice Act. I will assume, since it was not raised as an issue before me, that the Youth Criminal Justice Act bailprovisions apply.

[28] Those provisions are contained in ss. 28, 29 and 31 of the Youth Criminal Justice Act. Notably S. 29 was amended in 2012. A comparison of the former and present bail provisions is comprehensively, and in my view authoritatively and accurately covered byJudge W. Gorman acting as a Youth Court Judge in R. v. RB 2013 NUCJ 7 , [2013] NJ No. 11. An earlier decision of his shedsmore light on the bail provisions as they specifically existed before the coming into force of the “Safe Streets and Communities Act” SC2012 c.1 – see R. v. WM [2011] NJ No. 353.

The Evidence Before Me The 2011 and 2012 Charges [29] The trial of the 2011 charges completed September 20th, and is due for decision on October 7th at 2 p.m. I did not hear thetrial, and rely upon counsel's factual representations as to what evidence was presented. [30] The complainant PC was born September 9, 1997. JTC was born February 12 1995. Thus he is 2 1/2 years older than PC. [31] On July 7, 2011 PC was 13 years 10 months old. JTC was almost 16 ½ years old. JTC had known PC from having spent timein the area of Indian Harbour where PC lives approximately 2 km from NJ’s, JTC’s aunt's house.

They apparently also had been insufficient contact, at school and otherwise, that very likely he would have been quite aware that she was not 16 years of age. In fact hemay very well have known that she was not yet 14 years of age on July 7, 2011. Nevertheless at trial JTC testified that he believed thecomplainant when he says she told him that she was 15 years old on July 7, 2011. I understand that PC says she told him she was 13years old at the time.

On that date, after going swimming together, they huddled in a shed where JTC provided beer to her, and afterconsuming the beer they had sexual intercourse without using a condom. JTC was on a probation order from June 3, 2011 not to possessor consume alcohol. There is some indication that PC may not have previously engaged in sexual intercourse – she was not on birthcontrol at the time and was scared about getting pregnant. She also performed fellatio on JTC and there was no mention of a condombeing used during that sexual act. [32] Since he has been approximately four years of age JTC has been HIV-positive.

He has therefore received considerablecounseling and medical advice regarding his condition, and particularly that he must advise sexual partners thereof and use condoms.Without precise evidence or representations on this point, Counsel accepted that he has what is referred to as a “low viral load” whichwas recently considered by the Supreme Court of Canada in R. v.

Mabior 2012 SCC 47 , [2012] 2 SCR 584. [33] The complainant PC was not told by JTC that he was HIV-positive, but had she been told she would not have had sexualintercourse with him, and I infer would not have performed fellatio upon him. [34] The 2012 charges are still awaiting trial, and I rely on Counsel's representations as to the anticipated facts regarding the trial. [35] The complainant regarding the 2012 charges, is also a friend and sexual partner of JTC.

He is similarly charged withaggravated sexual assault regarding her and the endangerment of her life based on his unprotected sexual intercourse with her, and failureto disclose his HIV-positive status. [36] JTC and SN had some contact in early April 2012. Before any sexual intercourse they discussed their respective medical andsexual partner histories. JTC did not disclose to her anything regarding his HIV-positive status. During the week of April 23 thecomplainant had consensual vaginal intercourse with JTC using a condom. The complainant heard rumours about JTC having HIV, andconfronted him.

He denied having HIV in a Facebook message. In May the complainant had sexual intercourse with JTC and a condomwas used. Two days later the complainant again had consensual sexual intercourse with JTC and a condom was used, but it broke duringintercourse. JTC asked the complainant to perform fellatio which she agreed to, without the use of a condom, and thereafter theycontinued to have unprotected vaginal intercourse. It is suggested that JTC did ejaculate, and the complainant noticed that the condomthat had been used previously was actually torn.

Thereafter the complainant confronted JTC in a telephone call overheard by anotherfriend of SN, during which JTC apologized for not disclosing his HIV status, and reassured the complainant she could not contract HIVfrom him in any event. [37] The Defence position regarding the 2011 charges trial [and likely will be argued regarding the 2012 charges]was that JTChad raised a reasonable doubt about whether a condom had been used during vaginal intercourse, and if reasonable doubt existed, then hecould not be guilty of aggravated sexual assault because a combination of his “low viral load” and condom usage which reduces the riskto below the “significant risk of serious bodily harm” per the Supreme Court of Canada decisions in R. v.

Cuerrier (SCC), [1998] 2 SCR 371 and R. v. Mabior 2012 SCC 47 , [2012] 2 SCR 584. [38] In the context of sexual intercourse, those two cases dealt with the question of whether deceptions by an accused could vitiateconsent to touching that would otherwise not be an assault, if they were found to constitute “fraud” under S. 265 (3)(c).

Taken togetherthey stand for the proposition that nondisclosure of HIV-positive status can constitute “fraud” under S. 265(3)(c), and thus vitiateotherwise valid consent given by a complainant, unless the accused has an undetectable so-called “low viral load”, and a condom is used. [39] In Mabior, the Supreme Court of Canada refined the "significant risk" test from Cuerrier to mean more precisely a “realisticpossibility of transmitting HIV” – para. 84.

Moreover, at para. 88 the Court identified the rationale for permitting certain deceptions tovitiate consent on the basis of “fraud” referred to in s.265(3)(c): [The common law and statutory history of fraud vitiating consent to sexual relations] suggests that only serious deceptions with seriousconsequences are capable of vitiating consent to sexual relations. [40] Some have argued that the Court has left many questions unanswered: "HIV nondisclosure and the Criminal Law: an analysisof two recent decisions of the Supreme Court of Canada” – Criminal Law Quarterly

(2013) Volume 60 p. 30.

[ 41 ] Those decisions did not touch on the S. 273.1 extended definition of “consent” relevant only to sexual assault allegations under S. 271 , 272 and 273 of the Criminal C ode of Canada . [ 42 ]

Section 273.1(1) reads: Subject to subsection (2) and subsection 265(3) , “consent” means, for the purposes of

section 271 , 272 and 273 , the voluntary agreement of the complainant to engage in the sexual activity in question. [ 43 ]

Section 273.1 (2) sets out specific circumstances where “no consent is obtained, for the purposes of sections 271, 272 273…”, none of which are applicable in the circumstances of this case. [ 44 ] The Supreme Court of Canada will soon hear an appeal from our Court of Appeal’s decision in R. v. Hutchinson 2013 NSCA 1 . At trial Justice Coughlan found Mr. Hutchinson guilty, not of aggravated sexual assault, but of sexual assault in circumstances where he had deliberately sabotaged condoms used by he and his sexual partner which, she had insisted on being used in order to avoid becoming pregnant.

Ultimately as a result of his poking holes into the condoms she did become pregnant. Justice Coughlan found that he was not satisfied beyond a reasonable doubt that Mr. Hutchinson’s actions caused the required “significant risk of serious bodily harm” to the complainant such that her consent to sexual intercourse would have been vitiated pursuant to S. 265(3) (

c) of the Criminal C ode . Nevertheless, he found Mr. Hutchinson guilty of sexual assault based on his

interpretation of the “consent” definition in S. 273.1(1). That is, Justice Coughlan found that the “sexual activity in question” which the complainant had agreed to was not simply sexual intercourse, but rather protected (by use of condoms) sexual intercourse. By having poked holes in the condoms Mr. Hutchinson had fundamentally changed “the sexual activity in question”, and therefore ab initio there was no consent by the complainant. [ 45 ] Chief Justice MacDonald, for four members of the Court stated: 67 First,

section 273.1(1) states that, for the charge of sexual assault, Consent means…the voluntary agreement of the complainant to engage in the sexual activity in question. If there is no such consent then it is unnecessary to consider Section 265(3) (c). If there is such consent, then, in cases of deception, the court moves to Section 265(3) (

c) and, if the complainant submitted because of fraud, then what otherwise would be consent is vitiated. 68 The threshold question is: what does

Section 273.1(1) mean by “the sexual activity in question” 69 [Justice Farrar in his dissent] says “the meaning of ‘sexual activity’ in

Section 273.1 (1) simply refers to the physical sex act and not to the conditions or quality of that act”. In Mr. Hutchinson’s case that would mean coitus, and nothing else. 70 In R. v. JA , supra, at paragraph 66 , the Chief Justice [of the Supreme Court of Canada] for the majority said

Section 273.1(1) requires consent “throughout every phase of the sexual activity”. In my view, this is broader terminology than just the ultimate act of coitus and nothing else. 71 As I see it, the concept of “sexual activity in question” embodied by JA ’s direction requires an analysis of the evidence to identify the essential features of whatever phases of sexual activity occurred on the occasion that is the subject of the charge. In one case, the evidence may establish that the only essential feature was intercourse. In another, the essential features may encompass more.

The feature must be a component of the sexual activity, and not in extraneous factor than merely affected motive to engage in the sexual activity. What is essential would depend on what factors affected the complainants subjective conditions, if any, for consent to that sexual activity. These are factual matters that will vary from case to case. 72 I respectfully disagree that the “sexual activity in question” under

section 273.1(1) may be legally defined in advance has restricted only to the ultimate vaginal penetration, without regard to the evidence, in the particular case, respecting any other features of the sexual activity that were essential to the complainant’s subjective consent. ● ● ● 80 Fifth, my colleague cites the “slippery slope” of unwarranted or trivialized criminalization. 81 In my opinion, this criticism underestimates the traction of

Section 273.1(1). Nothing in my approach would criminalize the type of case posited by Justice Cory in Cuerrier paragraphs 134–5 – for example, where the accused lies about matters like age, employment or wealth. Those deceptions would not involve essential features of the “sexual activity in question.” So they would not impugn consent under

section 273.1(1). Rather, they involve anterior facts outside the bedroom. The complainant’s belief in those anterior facts may affect the complainant’s motive to engage in sexual activity. But those deceptions would only vitiate consent if there is fraud under Section 265(3) (c), which involves a significant risk of serious bodily harm according to Cuerrier and Mabior . 82 An absence of consent to an essential feature of the sexual activity, on the other hand, is precisely what

Section 273.1(1) aims to criminalize.

An untampered condom during the act of intercourse was an essential feature of the sexual activity here.” [ 46 ] As Chief Justice MacDonald points out at paragraph 38 in Hutchison , in JA , Chief Justice McLachlin while identifying the risks of interpreting s. 273.1(1) too broadly, suggested that if an unconscious sexual partner is subjected to unprotected sexual intercourse, whereas that complainant would have only consented to the sexual acts if a condom was used while conscious, then there would not have been consent to the “sexual activity in question”. [ 47 ] These pronouncements of the Supreme Court of Canada and our Court of Appeal, assist me in understanding the legal nature

and extent of the jeopardy faced by JTC in the circumstances of this case. [ 48 ] JTC also has pending an assault charge and damage to property/mischief charge arising May 22 nd 2013 in Truro while JTC was an adult. The circumstances suggest that he was in the company of his girlfriend, DW, who was 18 years of age (DOB November 14, 1992) and 18 weeks pregnant on May 22 nd when things got very much out of hand, and he pinned her to the bed by holding her down and refusing to let her get up; and when she threatened to call the police he broke her mobile phone and took the battery out.

This matter is set for trial in February 3, 2014 in Truro. The complainant did give a KGB statement to the police. JTC denies the circumstances happened in such a way that he could be said to have committed any offenses. [ 49 ] On April 6, 2013, as an adult, JTC breached his March 28, 2013 DCSO [Deferred Custody and Supervision Order] that imposed a 10 p.m. curfew which required him be at the home of his aunt, NJ, in Indian Harbour. He had gone to a hockey game in Halifax, and apparently called the next day to advise police that he was now at her home.

On June 21, 2013 he was sentenced to 12 days in custody (in addition to eight days pretrial custody) for breach thereof under s.137 of the Youth Criminal Justice Act. [ 50 ] On March 28, 2013 he was sentenced to 60 days deferred custody [equivalent to an adult conditional sentence order] and 10 months probation for a July 7, 2012 impaired driving incident that happened at about 2:45 a.m. While he was intoxicated and had beer with him, he put his great aunt, NJ’s, car into a ditch and a tree.

He was also sentenced to 60 days deferred custody (concurrent) in relation to breach of s.137 of the Youth Criminal Justice Act for his failure to not be in possession and/or consume alcoholic beverages. [ 51 ] A

summary of his criminal record and related information is contained in Exhibit C-1 "Bail Report". Testimony of Witnesses JTC’s Testimony [ 52 ] JTC testified. He has completed Grade 9 and is working on his GED equivalency while in custody in Waterville Youth Institution, where he was transferred from the Burnside Correctional Facility for adults after approximately two weeks of being there in June 2013. [ 53 ] It appears he was taken into custody of the Department of Community Services at approximately age 12 after he had lived with his great aunt, NJ, between 4 and 12 years of age.

Thereafter, as a ward of the Department of Community Services, he has been in a couple of foster homes. and stayed at various levels of youth group homes, including the Reigh Allen Center (intended for emergencies and typically less than six weeks for those less than 18 years of age); Hawthorne House (which is part of Home Bridge and intended for 15 to 18 year olds - where he resided according to Jackie Garret between August 2009 and January 2011); at the Wood Street Center in Truro (which is a lockdown for at-risk youth who are generally there only five days until a court hearing is held to determine if they are appropriate candidates to stay there – it is usually for those less than 16 years of age) - and he was there six times according to Ms.

Garrett; Edwards House (which is for kids older than 16 years and intended to be for semi-independent living) and Phoenix House (which is like Edwards House yet allows even more independence, however the youth must apply on their own independently, as opposed to the application being made in the other cases by their legal guardian). [ 54 ] It appears he visited, mostly on weekends, his great aunt, NJ in Indian Harbour from the Fall of 2010 to March 2013, and he lived there between March and May 2013. [ 55 ] He admitted that when he was arrested on June 12, 2013, he was in the company of DW at the hospital in Amherst, and that he had been living there for about five days at that time, just after staying at Phoenix House for a couple weeks.

As he put it: “I was really all over the place since November 2012”. He admitted at one point that he had been living with DW in the New Glasgow area as well. [ 56 ] As I understand it, he was arrested in Amherst in part because he was in breach of a no contact order regarding DW arising out of the Truro charges of May 22 nd, 2013.

As I understand his evidence, DW no longer wishes to have any contact with him, and he no longer wishes to have any contact with her, but would like to be involved with his baby. [ 57 ] He noted that his great aunt’s brother, who lived with her in Indian Harbour, passed away July 30, 2013 and this in combination with the impending birth of his baby, has caused him to be determined to put behind him his criminal life, and not repeat the “really dumb decisions I made when I was younger”.

He claims he has “matured” and is now a different person. [ 58 ] His plan is to get back with Advantage Personnel, which in April 2013 had arranged for him to work with the Sears long-haul trucking outlet in the Kearney Lake Road in the Halifax Regional Municipality which lasted approximately “one month-ish” he stated. He also worked for 2 to 3 weeks as a night shelf stocker at the Superstore in Bayers Lake, but when DW got pregnant he felt he needed a better job and quit.

He testified that when Advantage Personnel had recently called him he advised them he was in Kentville, and would call them once he was back in the Halifax Regional Municipality – he was in fact in custody and therefore did not truthfully advise them of his whereabouts.

He also mentioned that he has a cousin working at a local lobster pound, and it would be ideal if he could get a job there, as that would also allow him to dedicate a fair amount of time to re-shingling and perhaps painting his great aunt`s house, as she is on a modest income and is physically unable to carry out this work herself. [ 59 ] He also intends to continue his GED studies, but gave no details of how he would accomplish this or whether he had made application, etc.

Only since he has been in custody in Waterville recently, has he begun to undertake the studies related to the GED equivalency. [ 60 ] He acknowledged that on or about May 30, 2011 he failed to attend Court for which he was convicted. The reason he was not at Court in Halifax was he had, without her consent, taken his great aunt NJ’s car, and with his friend driven it to the Province of Ontario and on the way back was arrested in Québec by the Québec Sureté. He spent a couple of days in a francophone youth detention center there, and was returned to a Halifax by way of a Sheriff escorting him back from Québec.

He was placed at the Wood Street Center in

Truro. He testified that he had advised his great aunt that he had taken her car, but told her he was in New Brunswick, and on his way back home, before he was intercepted in Québec. [ 61 ] He says since June 2012 he has told all other of his sexual partners that he is HIV-positive. The only one he expressly referred to was DW. [ 62 ] He insists that he will follow the house rules and directions of NJ if he is permitted to live with her on a form of house arrest. NJ’s Testimony [ 63 ] NJ is approximately 63 years old, and is in visibly poor physical health.

She relies on a cane to walk and moves slowly and gingerly. She was present in court to hear J TC’s testimony and indicated her willingness to act as his surety, and "responsible person" [under s.31 of the Youth Criminal Justice Act] if required. She stated that she was prepared to notify the police if he breached any of the conditions of his release. She noted in the past she had been “more like a grandmother to him”.

She emphasized that given her physical limitations she really needs assistance with the housekeeping and JTC could help by re-shingling, painting, and doing work around the home generally. [ 64 ] JTC had been placed with her between the end of February and May 2013 and she found they had a very good relationship at that time. [ 65 ] She is prepared to place at risk $500 cash which she says, he knows is a significant amount of money to her. She stated when asked whether this would bind his conscience that, “I really feel he has changed – he is more responsible than in the past”.

She is prepared to drive him to work as she has sometimes in the past, and to any other appointments which are permitted. [ 66 ] She pointed out that his mistakes “are an impulse problem”. [ 67 ] She noted that the reason that he left her home at the end of April 2013 was because he had been trying to get into Phoenix House, and before that he had no place to go.

She suggested that between Christmas 2010 and the end of June 2011 he lived with her and her brother, whereas thereafter he would occasionally come weekends until the March to April 2013 time he spent living with her and her brother. [ 68 ] She admitted that in the past he had stolen alcohol that she and her brother had stored in the basement of the house for their own consumption. [ 69 ] She stated that to her understanding he had lived with DW for approximately 5 to 6 months prior to the end of February 2013. [ 70 ] She acknowledged that regarding his “impulse problem”: “it’s up to him – he knows that I will call the police… And he’s ready to control his impulses”.

Jackie Garrett’s Testimony [ 71 ] Ms. Garrett has been JTC's legal guardian as the agent of the Department of Community Services for the last five years. [ 72 ] He will be a Ward of the Province until he is 19 years of age or if he pursues educational opportunities until he is 24 years old. Ms. Garrett acts in the capacity of a parent to him. She has attended Court in relation to “most of his charges”. [ 73 ] She noted that when he wanted to live with NJ in January 2011 she supported it, and he did live with them between January and August 2011.

However, there were many issues including that he did not comply with the rules, he did not come home when he was supposed to, and therefore did not make it to school; he stole from them, and was very disrespectful. He reported that there were physical confrontations between he and the Johnsons. Therefore, by agreement in August 2011, he went to the Reigh Allen Center, after an incident in which he had driven around the Johnson's backyard in their car creating extensive damage. [ 74 ] Ms.

Garrett noted that when he was at Edwards House between November 2011 and November 2012 there were many issues and continuous complaints from his supervisor. He was suspended on two occasions while there. She stated at present the only place that he would be eligible to attend if he could not stay at his great aunt's house would be Edwards House, but only if they have room and they are willing to take him if he is on house arrest. She confirmed that he left Edwards House on November 20, 2012 and stayed with Ms. Wood in the New Glasgow area until February 2013 when they closed out his bed at Edwards House.

This caused him to have no place to live after living in the New Glasgow area, and so she supported him staying at the Johnson’s until in May he went to Phoenix House. [ 75 ] In May 2013, he reported to her that he "may have a drinking problem" and that when at his great aunt’s house they give him alcohol. She recently advised NJ that she was intending to testify to this effect in Court and noted that NJ did not dispute this fact.

Similarly, she had told NJ in the past about not breaching JTC’s no contact order with DW by passing messages between the two of them, yet on August 15, 2013 when she spoke to JTC he advised that he knew where DW was living and Ms. Garrett’s impression was that this was as a result of a communication from his great aunt. [ 76 ] She reluctantly supported the plan that JTC live with NJ and her brother in March and April 2013.

She noted that even NJ was reluctant at that time to have him back because a condition of her car insurance was that he not have access to her car, particularly as a result of his having driven her car in an irrational manner around her backyard in August 2011 causing a great deal of damage to the lawn; as well as the fact that he took her car without consent to the Province of Ontario and Québec in May 2011, and that he was found guilty of impaired driving and smashing her car up on July 7, 2012.

[ 77 ] When asked about the proposed plan to have JTC live with NJ under house arrest pending his trial on the 2012 charges, Ms.

Garrett indicated she did not support the plan. [ 78 ] Although she indicated NJ “means well”, she has such physical health limitations, is presently grieving the recent loss of her brother, and has been manipulated by JTC in the past effectively, such that JTC only "respects her out of convenience." [ 79 ] She noted that NJ’s brother was the stronger disciplinarian of the two, and that they had given him alcohol in the past [I do note that after the testimony concluded NJ indicated on the record that she was prepared to ensure that there was no alcohol in the household if that was required by the Court]. [ 80 ] Insofar as JTC’s alcohol problem she noted it has been ongoing for some time and twice recently in February 2013 she took him to the "Choices" program to address his substance abuse issues, but he did not follow up. [ 81 ] Regarding his HIV status, she noted she had had many conversations with JTC regarding his HIV status and the medical advice that he should disclose to all partners and always use condoms.

She went on to elaborate however, from what JTC told her and other sources, that she was aware of five or six girls with whom he had sexual intercourse, to whom he had said nothing about his HIV status, and that three of these were incidents before the complainant PC incident on July 7, 2011. Specifically regarding DW, he had not told DW, and Ms. Garrett consequently advised him that if he did not tell her, she would feel compelled to tell her.

Thereafter DW told her that JTC had informed DW before they had sexual intercourse. [ 82 ] When JTC’s counsel referenced in cross examination that JTC continues on antiviral medication regarding HIV, Ms. Garrett pointed out that he went off his prescription for antiviral medication sometime around September 2012 after there was a suggestion that he may be able to do without the medication and still maintain a low viral load, but that he must be regularly monitored to ensure that that remains the case.

Against medical advice he went off the antiviral drugs yet, did not attend for regular monitoring since October 2012. Since he turned 17 years of age (February 12, 2012) rather than the IWK Hospital, he is now to be seen by personnel at the Victoria General Hospital in Halifax. Since his incarceration he has continued to be monitored and has returned to taking the antiviral drugs. I should note that he also went back on the antiviral drugs for a short period when he lived with DW.

It is unclear whether this was because the Department of Community Services required it in order that he have contact with DW’s two-year-old child or whether it was a decision taken purely by him without any impetus from the Department of Community Services. Conclusions Regarding the Testimony of the Witnesses [ 83 ] While I have not lost sight of the filed affidavits of JTC and NJ, their testimony superceded the affidavits’ content, and is much more deserving of weight. [ 84 ] I carefully followed the testimony as JTC gave it.

I assess it based on its internal consistency, and how externally consistent it is -- that is, was his own evidence consistent, and was it consistent with the evidence that I otherwise accept? [ 85 ] I also assess his evidence based in part on his demeanor, that is how he answered the questions [in a precise or vague manner; in a flippant or sombre manner etc.], and the content thereof – whether he appeared to be candid in wishing to fully inform the Court of the circumstances, and whether his testimony is in fact reliable insofar as his memory of evidence is concerned, and his suggested determination not to reoffend while on any bail the Court might order. [ 86 ] Overall, I was unimpressed by his testimony.

Many of his answers seem to be driven by a desire to excuse his past behaviours, whether convictions resulted or not. His answers do not reflect those of a mature person. There is no concrete job available, nor any reliable evidence that anyone would hire him in the circumstances. I am skeptical that he has any genuine interest in employment. He certainly has shown no sustained interest before he came to be incarcerated for these charges. Similarly, I am skeptical about his suggestion that he is going to work on his GED while he lives with his aunt in Indian Harbour.

I heard no details of what was involved or that he had applied, or even knew where to apply to continue with his GED pursuit. [ 87 ] His suggestion that he is now, because of the death of his great uncle and impending birth of a baby in October 2013, more mature and wishes to get on with his life and get away from the negative influences in his life, rings very hollow when one considers that as recently as June he was likely in violation of his no contact order with DW, and that after being brought to the Choices Program twice in February 2013 he did not undertake any follow-up for what obviously is a substance abuse problem with alcohol that he has. [ 88 ] I agree with Ms.

Garrett that JTC “respects [his aunt] out of convenience”, and that she is a kindhearted person who understandably has great sympathy for JTC, but that makes her prone to be manipulated by him, and there is a significant record of evidence to support that. [ 89 ] Regarding NJ, as I have said she has tried to be there for him as she no doubt understands the trying circumstances affecting JTC’s life from his early years on.

While she has not been a surety for him before, and suggests she would call the police if he breached a condition, unfortunately it is preferable that JTC would follow her directions, not get into further trouble, and not put her in that position in the first place.

That is, I do not find it likely that JTC would always follow her directions. [ 90 ] At present, as she stated, given his problem to control his impulses, I have no confidence that he can do so, and no confidence that he will do so even knowing that it will jeopardize his great aunt’s $500, if that is the amount the Court would otherwise impose upon the surety. [ 91 ] I found Ms. Garrett`s evidence to be given dispassionately, with a view to informing the Court in a balanced manner of her concerns regarding the release of JTC to live with his great aunt under any circumstances.

Moreover, I found her evidence to be intended to inform the Court in a fair manner about the circumstances of the past regarding JTC. [ 92 ] She of course will continue to supervise him, and in that capacity no doubt it is not easy for her to present unfavorable evidence to the Court; however it is clear in my mind that she does so because she believes his long-term interests require that.

[93] It was particularly disconcerting to hear that JTC has advised her that there were other young girls to whom he had notdisclosed his HIV status. While strictly speaking his usage of condoms in such circumstances may provide a measure of protection forthose young girls, the fact that he had not disclosed to them nor arguably to the complainants in the two cases before the Court at present,suggests a self-centeredness, recklessness and lack of maturity that I believe will not quickly be changed. This appears also to have beenthe case with DW – he had to be forced by Ms.

Garrett to reveal his HIV status to DW. [94] Similarly, a certain lack of responsibility and maturity presents from his decision not to maintain his prescription antiviraldrugs, and particularly not to be regularly monitored to ensure that he maintains what has previously been described as a “low viralload”. [95] I also noted earlier that JTC minimizes his past offences and acting out behaviours. He repeatedly characterized them as“stupid decisions”. While he says he has a newfound maturity, I simply do not see it in his actions, nor even any imminent glimmer ofthat maturity in his testimony.

Analysis of the Bail Provisions in Light of the Findings of Fact [96] In relation to young persons, as much as to adults, bail decisions involve a tension between the presumption of innocence andconcerns regarding the safety of the public and maintaining confidence in the administration of justice. [97] That tension is even more pronounced in the case of young persons, who as accuseds have been differently characterizedbased on “what flows from why we have a separate legal and sentencing regime for young people, namely that because of their age,young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment.

This entitles them toa presumption of diminished moral blameworthiness or culpability….48 Canada too has consistently acknowledged the diminishedresponsibility and distinctive vulnerability of young persons in all of the YCJA's statutory predecessors.” Per Abella J at para. 47 in R.v.DB 2008 SCC 25 , [2008] 2 SCR 3. [98] This observation is borne out by the approach to bail in sections 28, 29 and 31 of the Youth Criminal Justice Act. [99] Notably, in contrast to the case of adults, where pursuant to S. 515(6) a reverse onus provision applies against offenders incertain circumstances, “the onus of satisfying [a judge] as to the matters referred to in ss. 29(2) is on the Attorney General” – s.29(3).

However, I note, that in my view, the reverse onus contained (on a plain reading of the legislation) in s. 524 of the Criminal Coderemains in the relation to youths, and is not superceded by s. 29(3) of the Youth Criminal Justice Act. [100] Furthermore, effectively sections 28, 29, and 31 create a hierarchy of considerations, significantly different from the adultregime contained in S. 515 of the Criminal Code. [101] Section 29(2) is at the heart of youth bail decisions.

It reads: 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 offense [defined in

section 2 of the YCJA as: “means an indictable offense under

an act of Parliament for which themaximum punishment is imprisonment for five years or more”], or (ii) an offense other than a serious offense, if they have a history that indicates a pattern of either outstanding charges or findings of guilt[useful reference to what is a “history that indicates a pattern…” can be found in R. v. SAC [2008] SCC 47]; [and] (b) – the judge or justice is satisfied, on a balance of probabilities, [either] (

i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court whenrequired by law to do so, [or] (ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offense, having regardto all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offense,or (iii) in the case where the young person has been charged with a serious offense 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 theadministration 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 doso,

(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. [ 102 ]

Section 28 of the Youth Criminal Justice Act makes

Part 16 [compel appearance of accused] of the Criminal Code applicable “except to the extent that they are inconsistent with or excluded by this Act”. [ 103 ]

Part 16 encompasses s.493 through to and including s.529.4. [ 104 ] Remarkably, even if the court determines that the detention of a youth is appropriate pursuant to s.29(2), it cannot conclusively say so unless it has also considered whether instead the youth could be released into the care of a “responsible person” pursuant to s.31 – R. v. RD 2010 ONCA 43 , provides an extensive commentary on the predecessors to S. 31 and its implications [yet it should be noted RD was decided before the 2012 changes to S. 29 of the Youth Criminal Justice Act .] [ 105 ]

Section 31 of the Youth Criminal Justice Act was intended to require a court to consider whether a responsible person is available and the young person is willing to be placed. As Justice Rosenberg noted in RD : 39- In my view, the closer level of supervision contemplated under

section 31, together with the penal sanction for both the young person in the responsible person, may in some circumstances meet the public confidence concerns of the tertiary ground. At paragraphs 26 and 31 of R. v. Hall McLachlin CJ explained the purpose of the tertiary ground [in cases involving adults]: Therefore, Parliament provided for denial of bail where paragraphs (

a) and (

b) of section 515(10) are not met but the judge, viewing the situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is “just cause” for refusing bail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the public’s confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter.

When the public’s confidence has reasonably been called into question, danger such as public unrest and vigilante-ism may emerge… It serves a very real need to permit a bail judge to detain an accused pending trial for the purpose of maintaining the public’s confidence if the circumstances of the case so warrant. Without public confidence, the bail system and the justice system generally stand compromised.

While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available.’ 40-in an appropriate case, a judge considering the case of a young person charged with a very serious offense may find the public confidence in the bail system, and the justice system generally, can be maintained through the rigorous and strict regime that is possible under

section 31. While “release into the community” of an adult alleged to have committed the heinous crime referred to in Hall may not maintain confidence in the bail and justice systems, release of a young person to the close care of a responsible person may not undermine public confidence. In other words, as a result of

section 31, the judge is not faced with a simple binary choice of detention or release into the community.

Section 31 gives a further option that may in some respects resemble a form of detention by imposing strict conditions both on the young person and the responsible person. [ 106 ] Justice Rosenberg goes on to discuss procedure in the case of s.31 of the Youth Criminal Justice Act applications as follows: 46- A strict two-stage procedure in the application of

section 31 is both artificial and could prove time-consuming. Accordingly, at the evidence stage of the bail hearing, in a case were

section 31 may be in play, counsel should canvas with proposed sureties their suitability to also act as responsible persons, should the court so order. In addition, since the

section 31 inquiry is mandatory, where detention is a real possibility, the judge or justice has an obligation to raise the issue with counsel. [ 107 ] Though stating she could be available to be “a responsible person, if required”, NJ appeared to me to be somewhat reluctant to be considered by the Court as a “responsible person” under s.31 of the Youth Criminal Justice Act . [ 108 ] Justice Rosenberg went on to discuss the tertiary ground and young persons between paragraphs 48 and 56. In

summary, he concluded that the tertiary ground in s.515 of the Criminal Code is to be used sparingly as a basis for refusing release pending trial for young persons, noting that there is a preference in the Act for release pending trial. In support of this assertion he referenced the principles set out in s.3 of the Act and in particular the principle of a separate criminal justice system for young persons emphasizing rehabilitation and reintegration, accountability consistent with the greater dependency of young persons and their reduced level of maturity, and enhanced procedural protections.

He reiterated that: Confidence in the administration of justice does not turn only on the circumstances of the offense and the alleged offender. Public confidence is measured by the standard of a reasonable member of the community [ Hall at paragraph 41] and, in my view, includes recognition that bail is granted within the context of constitutional guarantees, most especially the presumption of innocence and the right to reasonable bail. - [para.55] [ 109 ] Next I will apply this legal analysis to the circumstances of the case at Bar.

Examining the “release plan” and its viability [ 110 ] In relation to s.29(2), specifically regarding the 2012 charges, I conclude as follows: (

a) JTC is charged with a “serious offence” – s.273(2) (

b) of the Criminal Code of Canada

(

b) on a standard of the balance of probabilities I am satisfied that: (

i) JTC, in spite of his May 30, 2011 failure to attend court and his numerous breaches of either probation orders or release conditions,will attend at court as required if released; (ii) the continued detention of JTC is justified as “necessary for the protection or safety of the public, including any victim of or witnessto the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released fromcustody, commit a serious offence”.

I say this because I accept that in the past JTC has repeatedly not disclosed to his sexual partners hisHIV-positive status, and that on some of those occasions he has not used a condom in relation to sexual intercourse and/or fellatio. It isclear to me that he does not see it is his responsibility to disclose because he believes it is unimportant.

He believes his sexual partnerscannot get HIV from him because of his “low viral load”, yet he has discontinued at times his antiviral medications without good causeand against medical advice, and has also against medical advice not disclosed his status to sexual partners and not likely always worn acondom during sexual intercourse and fellatio.

Moreover he still has an ongoing alcohol abuse problem which remains unaddressed byhim, in spite of opportunities being given to him to attend programs like the Choices program, and the fact that in his Deferred Custodyand Supervision Order of March 28, 2013 for 60 days he was required to “attend as directed by your youth worker for substance abuseassessment and counseling” and his 10 month follow-up probation order contained a similar clause. I am very concerned about thissubstance abuse problem and his “impulse control” problem in the context of his criminal record.

In my view, this combination makesthe likelihood of him committing a serious offense [not necessarily confined to just sexual assaults or crimes] “substantial”. The plan putforward by JTC is frail – I’m unsatisfied that NJ can effectively control his behaviour, and I am satisfied that he will not abide by theconditions of any form of release that the Court would contemplate in the circumstances. (iii) Even if his detention were not justified under s. 29(2)(b)(ii), that it is justified under this subsection.

I am aware that courts haveopined that similar subsections are to be used only rarely, in the context of s.515 of the Criminal Code and the pre-2012 amendments toSection 29 of the Youth Criminal Justice Act. However, since those amendments I am unaware of any cases that have directly andpersuasively addressed the meaning of Section 29(2)(b)(iii). Clearly “exceptional circumstances that warrant detention and thatdetention is necessary to maintain confidence in the administration of justice” are required.

Such analysis must take into account theprinciples in s.3 of the Youth Criminal Justice Act, and the circumstances, including the four expressly mentioned factors in thatsubsection. [111] The circumstances here include that the “plan” is: to have JTC reside with his great aunt, who I have found will be unable tocontrol his actions, yet JTC would be living in the very small community of Indian Harbour less than two kilometers from the home ofthe complainant PC regarding the 2011 charges.

Surely the heightened vulnerability of young persons, acknowledged by the SupremeCourt of Canada in numerous cases must also be factored into my consideration of the effect of the release of JTC on the victim PC whojust turned 16 years of age. [112] I note as well that JTC did not suggest the Judge Campbell had made any error in relying on S. 29(2)(b)(ii) for denying bail.The only difference now is the new “plan” put forward by JTC.

If I have reasonably and correctly concluded that that plan issubstantially deficient, then on this review arguably, JTC would have to agree that his position is thereby undermined as it relates tos.29(2)(b)(ii). [113] I further note that I have no precise or expert evidence before me about the present “viral load” of JTC, and whether and howquickly the “viral load” could escalate creating a greater danger to persons subjected to the transmission of bodily fluids from JTC.Moreover, I have found that he has previously discontinued taking antiviral medication and being monitored, which I characterize ascompletely reckless behavior, and I have little confidence that if released he would significantly change his beliefs or behaviour. [114] Having said that, I do not lose sight of s.3 of the Youth Criminal Justice Act which reminds me that young persons areconsidered to have “diminished moral blameworthiness or culpability”; but that in my view is a reflection of their diminished moraljudgment, and thus in the context of bail, that is a factor in this case that increases the risk that JTC may commit further serious offences. [115] I note that as well S. 3 of the Youth Criminal Justice Act also states that “victims should be treated with courtesy, compassionand respect for their dignity and privacy, and should suffer the minimum degree of inconvenience as a result of their involvement withthe youth criminal justice system”.

Notably the term “victim” includes the complainant at a point in the process before any finding ofguilt is registered. This is because S. 2 of the Criminal Code defines “victim” as “includes the victim of an alleged offence”. [116] The case for the prosecution regarding the 2012 charges will turn, as counsel for JTC stressed, on proof that no condom wasused, and necessarily on the credibility [honesty and reliability] of the complainant, SN. This is similarly so in relation to the 2011charges.

I would nevertheless characterize the Crown’s case as relatively strong, because there is clear evidence that JTC did not discloseto SN his HIV-positive status, and while a condom was used initially, but became broken/torn, unprotected sexual intercourse occurredthereafter. [117] I do not lose sight of the fluid state of the law regarding such issues – while our Court of Appeal’s decision in R. v.

Hutchinsonis distinguishable factually (involving a male accused intentionally sabotaging condoms which did cause the victim to become pregnantagainst her will), it does remind us that the Supreme Court of Canada in JA, (as in Hutchinson) also focussed on the definition of“consent” in s.273.1 and may be said to have equated the unconscious willing sexual partner in some respects with the conscious, butdeceived, willing sexual partner in a case such as the one at Bar. [118] Moreover, bearing in mind as well that the Supreme Court’s stated rationale in Mabior at para. 88 for the necessity of the“substantial risk of serious bodily harm” test is: ‘[The common law and statutory history of fraud vitiating consent to sexual relations]suggests that only serious deceptions with serious consequences are capable of vitiating consent [under s.265(3)(

c) of the Criminal Code]to sexual relations’, so as to avoid the overly expansive criminalization of deceptive behaviours implicated with sexual relations, thatrationale may have an overriding bearing on the outcome of cases such as the one at Bar. [119] That is, if in fact, the underlying concern is with only criminalizing “serious deceptions with serious consequences”, perhapsthe non-disclosure of HIV positive status and consequential psychological impact on a victim, per R. v. McCraw (SCC),

[1991] 3 SCR 72 at paras. 21-22 , rising to the level of “serious or substantial psychological harm”, may effectively provide the “substantial risk of serious bodily harm” test in Cuerrier , and thus vitiate consent to sexual relations in a case such as at Bar regarding the 2012 charges. [ 120 ] I note as well that the trial is soon to be heard regarding the 2012 charges – that is on October 28 to November 6, 2013.

That is approximately how much longer therefore JTC would remain in custody before a decision is rendered regarding his guilt or innocence. [ 121 ] In my view the gravity of the offense is extremely serious. Young girls, with heightened vulnerability were unknowingly exposed to a risk of the transmission of bodily fluids containing HIV. It is unlikely that reasoned explanation about “low viral load” would assuage their anxiety and fears.

JTC would appear to have been reckless and immature, and highly irresponsible by not informing his young sexual partners in every case of his HIV status. [ 122 ] The circumstances of the offence involved a previously trusting relationship between JTC and the young girls involved.

He betrayed their trust and exploited their lack of knowledge for his own self-gratification. [ 123 ] On being found guilty of aggravated sexual assault or simple sexual assault, in my view, JTC would be liable for a “potentially lengthy custodial sentence” in the context of this being a case governed by the Youth Criminal Justice Act . [ 124 ] Pursuant to s.29(2)(

c) I find that I am satisfied on a balance of probabilities, that no condition or combination of conditions of release would: ● ● ● (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.

As earlier indicated NJ did not appear to be keen to be designated as a potential “responsible person”, and in any event, given my concerns about her inability to control JTC’s behaviour and his apparent ability to manipulate her, she would not be a reliable candidate as a s.31 Youth Criminal Justice Act “responsible person”. [ 125 ] On this review of Judge Campbell’s decision I conclude that he committed no error in refusing to release JTC on any combination of release conditions or means.

I find with the new information available to me, that I am not satisfied that the conclusion of Judge Campbell should be disturbed. If anything the new information available to me satisfies me of the correctness of his decision.

Summary [ 126 ] Judge Campbell denied bail on the 2012 charges and “revoked” bail on the 2011 charges.

On a close reading of s.520, I have no jurisdiction to deal with the 2011 charges because the trial of JTC on those charges started on September 5, 2013. [ 127 ] In relation to the 2012 charges, and the “plan” put forward by JTC for his release, I found the testimony of JTC to be unimpressive; I found the testimony of NJ to indicate that she is a person with a well-meaning nature, but she is not in a position to act as an effective surety nor as a “responsible person” in relation to JTC; and I found the testimony of Ms. Garrett to be dispassionately given with the interests of JTC at the core of her concerns. Ms.

Garrett was not in favour of the proposed plan of release. I agree with her – the plan does not sufficiently address the risks associated with the release of JTC at this time. [ 128 ] JTC will be detained on the basis of S. 29(2)(b)(ii) and (iii), as I am convinced it more likely than not that there is no combination of conditions of release which would offer adequate protection to the public from the risk that JT C might otherwise present, or would maintain confidence in the administration of justice in these exceptional circumstances.

Conclusion I confirm the decision of Judge Campbell of the Youth Court, and order that JTC be detained pending the completion of his trial or other lawful order from this or another Court. Rosinski, J.