IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA
Citation: Her Majesty the Queen v. J.G., 2004 NSPC 6
Date: 20040114
Docket:1392751
Registry: Halifax
Between:
Her Majesty the Queen
v.
J.G.
Publication restriction: Sections 110 and 111 of the Youth Criminal Justice Act
Judge: The Honourable Judge Pamela S. Williams
Heard: January 6, 2004
Oral Decision: January 14, 2004
Written Decision: January 14, 2004
Counsel: Gary Holt, for the Crown
Rickcola Slawter, for the Defence
By the Court:
Introduction
[1] This decision is in relation to a show cause hearing on two informations before this Court. J.G. is charged in a single count information with an offence contrary to s. 151 of the Criminal Code, alleged to have occurred in July, 2002. He is also charged, in a multi-count information, with robbery, breach of probation, two breaches of release orders and a breach of an undertaking of a responsible person. The Crown has the burden of proof on the single count information and the young person has the reverse onus burden on the multi-count information.
[2] The Crown is opposed to the young person’s release on the primary and secondary grounds of s. 515(10) of the Criminal Code.
Facts
[3] The young person has a prior record, which the Crown admits is not particularly serious. He has 4 convictions under the Criminal Code, one in May 2002 for joyriding and three in September 2003 for theft under, assault and breach of probation. He also has convictions under the Liquor Control Act, the Protection of Property Act and the Motor Vehicle Act between November 2002 and August 2003.
[4] Of particular concern to the Crown is the number and nature of outstanding charges this young person has pending. In addition to the two informations before the Court for show cause hearing, there are 4 outstanding informations:
1. Theft under $5000, possession under $5000, possession of tools for breaking into a place, joyriding and two breaches of failure to comply with a release order;
2. Two charges of breach of undertaking of a responsible person and one charge of failure to comply with a release order;
3. Assault with a weapon, two breaches of probation, two breaches of release orders and two breaches of an undertaking of a responsible person. Those offences are alleged to have occurred November 21st, 2003.
4. Breach, enter and theft, breach of probation, breach of a release order, and breach of an undertaking of a responsible person. Those offences are alleged to have occurred December 23rd, 2003.
[5] In relation to information # 1 above, the young person was released in May of 2003 on an undertaking of a responsible person with a curfew from 6 pm to 6 am. On informations # 3 and 4, the young person was released on December 24th, 2003 on a second undertaking of a responsible person with a 24 hour house arrest provision with specified exceptions.
[6] JG has 25 outstanding charges in total, 18 of which are allegations involving breaches of
court orders and 6 of them are allegations specifically relating to the breach of undertakings of a responsible person.
[7] Since the second undertaking of a responsible person was entered into on December 24th, 2003, it is alleged that there has been a further violation of that undertaking. The responsible person, JG’s mother, testified that she is aware of one incident whereby her son violated his house arrest condition since December 24th, 2003; no other particulars were provided. However, there is a new information before the Court today alleging breaches of release orders on January 3rd, 2004.
[8] The Crown also alleges that JG failed to attend court as directed on August 22nd, 2003 and November 21st, 2003. It is noted that November 21st, 2003 is a date on which the Crown alleges that offences were committed by this young person.
[9] The offence dates on the information before me today, July 1st to 31st, 2002 and December 23rd, 2003, predate the last undertaking of a responsible person. The Crown says it was not aware of these alleged offences when a bail hearing was conducted on December 24th, 2003.
Issues
[10] 1. Does the presumption against custody pursuant to s. 29(2) of the Youth Criminal Justice Act (YCJA) apply to the single count information alleging an offence of sexual interference?
2. If so, is the presumption rebuttable?
3. Has the Crown met its burden with regard to the primary and/or secondary grounds for detention under s. 515(10) of the Criminal Code?
4. Has the Defence discharged its burden with regard to the primary and/or secondary grounds for detention under s. 515(6)(a) and (c) of the Criminal Code?
The Law
[11] The pertinent portions of the YCJA, the Criminal Code and the Charter as they relate to detention are as follows:
Section 28 of the YCJA - Application of Part XVI of Criminal Code:
Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act.
Section 29(1) of the YCJA - Detention as a social measure prohibited:
A youth justice court judge or a justice shall not detain a young person in custody prior to being sentenced as a substitute for appropriate child protection, mental health or other social measures.
Section 29(2) of the YCJA - Detention presumed unnecessary:
In considering whether the detention of a young person is necessary for the protection or safety of the public under paragraph 515(10)(b) (substantial likelihood – commit an offence or interfere with the administration of justice) of the Criminal Code, a youth justice court or a justice shall presume that detention is not necessary under that paragraph if the young person could not, on being found guilty, be committed to custody on the grounds set out in paragraphs 39(1)(a) to (c) (restrictions on committal to custody).
Section 39(1) of the YCJA - Committal to custody:
A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless
(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non-custodial sentences;
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act...;
Section 39(2) of the YCJA - Alternatives to custody:
If any of the paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under s. 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.
Section 515(10) of the Criminal Code - Justification for detention in custody:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim or witness of an offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) on any other just cause being shown and , without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.
Section 515(6) of the Criminal Code - Order of detention:
Notwithstanding any provision of this section, where an accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part, ...or
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part ...,
the justice shall order that the accused be detained in custody until he is dealt with according to law, unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified, but where the justice orders that the accused be released, he shall include in the record a statement of his reasons for making the order.
Section 31(1) of the YCJA - Placement of young person in care of responsible person:
A young person who has been arrested may be placed in the care of a responsible person instead of being detained in custody if a youth justice court or a justice is satisfied that
(a) the young person would, but for this subsection, be detained in custody under s. 515 (judicial interim release) of the Criminal Code;
(b) the person is willing and able to take care of and exercise control over the young person; and
(c) the young person is willing to be placed in the care of that person.
Section 11 of the Charter - Proceedings in criminal and penal matters:
Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
Analysis
[12] As stated earlier, the Crown has the burden of proof with regard to the s. 151 offence. The Defence argues that s. 151 is not an offence that fits the criteria for the imposition of custody under the YCJA s. 39(1)(a) to (c) and therefore the presumption against custody under s. 29(2) of the YCJA should be applied as it relates to the secondary ground under s. 515(10) of the Criminal Code. The presumption does not apply with regard to the primary ground under s. 515(10) of the Criminal Code.
[13] The detention provisions in the YCJA and the Criminal Code require that I consider potential available sentences if the young person were to be found guilty, in keeping with the purpose and principles of sentencing under s. 38 of the YCJA and the general principles under s. 3. This may appear to be a backward or roundabout way of looking at things but, in my view, a necessary one, calling for a holistic approach.
[14] The presumption against custody applies to young persons charged with non-violent summary conviction/low-end indictable offences unless they have failed to comply with non-custodial sentences. In such cases the Court is to assume that the release of the young person will not place the safety of the public at risk.
[15] I find that the presumption is rebuttalable, albeit in rare cases; see R v. H.E. [2003] N.J. No. 299, R v. T.S. [2003] B.C.J. No. 1066 and R. v. W.S.C. (A decision of Whalen J. of the Youth Justice Court, Saskatoon, Saskatchewan dated December 12, 2003).
Violent Offence
[16] The first question to be answered is whether or not the presumption against custody applies to the charge of sexual interference. The Crown proceeded by indictment but there is not a history that indicates a pattern of findings of guilt, S. 39(1)(c). Nor has this Young Person failed to comply with non-custodial sentences, S. 39(1)(b). The remaining issue is whether or not sexual interference is a violent offence for the purposes of S. 39(1)(a) of the Youth Criminal Justice Act. If it is, there is no presumption against custody under s. 29(2) of the Youth Criminal Justice Act. Sexual interference has to do with the interference of the bodily integrity of a person. It is a form of assault as it requires an inappropriate touching. The necessary factual foundation for the charge is very similar to the factual foundation necessary to prove sexual assault. It requires a touching for a sexual purpose. In the case of an allegation under s.151, the law requires the victim to be under the age of 14 years. In the case of a sexual assault, there is no age restriction but the law does require that there be no consent. The penalty sections are virtually the same.
[17] “Violent offence” is not defined in the YCJA. However, “serious violent offence” is defined as an offence in the commission of which a young person causes or attempts to cause serious bodily harm. It seems to me to follow that a violent offence is therefore an offence in the commission of which a young person causes or attempts to cause bodily harm. (See R v. T.M.D. [2003] N.S.J. No. 488). Bodily harm is defined in s. 2 of the Criminal Code as any hurt or injury to a person that interferes with the health or comfort of a person and that is more than merely transient or trifling in nature. In my view, hurt or injury can be psychological as well as physical. The violation of a person’s bodily integrity under s. 151 is both physical and psychological. Moreover, I agree with Justice Moore in R. v. L.P.G. [2000] A.J. No. 1280 at paragraph 28 where he stated in reference to section 151 charges that:
these are highly reprehensible offences. The Court must show absolute abhorrence of young children being abused in this fashion.
[18] Offences of sexual touching are sexual abuse, and as per Justice Abella’s decision in R. v. Stuckless (1998), 17 C.R. (5th) 330 (Ont. CA) at page 344-45:
Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitable conduct, and represents the use of compulsion against someone who is defenceless.
Therefore, sexual interference is an offence of violence and the presumption in S. 29(2) of the Youth Criminal Justice Act does not apply.
[19] The robbery offence alleged in the multi-count information is, likewise, an offence of violence for which custody could be imposed under s. 39(1)(a) of the YCJA.
[20] I am mindful that a person is innocent until proven guilty and that all citizens are entitled to reasonable bail.
Primary Ground
[21] Despite the fact that the young person failed to attend court on two prior occasions, I am not convinced that the Crown has met the burden to satisfy this Court that JG should be detained on the primary ground, namely that his detention is necessary to ensure his attendance in court in order to be dealt with according to law. JG has satisfied me that detention is not necessary to ensure his attendance in court.
Secondary Ground
[22] JG’s mother testified at the show cause hearing. She stated that she is prepared to act, once again, as a responsible person and sign an undertaking to that effect. She is “the responsible person” on two prior release orders of this type entered into in May 2003 and again on December 24th, 2003. JG’s mother works and is away from the home weekdays from 9:30 am to 6 pm and is unable to supervise her son during the day. She stated that JG’s father, who resides elsewhere, “keeps in contact” with her son during the day. When the Court asked Mrs. G. how her son had been performing under “house arrest”, she indicated that JG was following the conditions of his release order but that there had been one occasion on which JG had violated his house arrest. The Crown, after consulting with police, confirmed that police had responded to an alleged breach involving JG.
[23] Had JG followed the conditions of his release order of December 24th, 2003, without exception, I may well have concluded that the balance tipped, ever so slightly, in favor of JG’s release, thereby giving him a further opportunity to demonstrate that he could abide by conditions of release. However, once this Court heard evidence under oath that he violated the house arrest condition of the undertaking on one occasion between December 24th, 2003 and January 7th, 2004, I was not prepared to afford JG any further benefit of the doubt.
[24] I have considered the nature, the number and the seriousness of the charges before me. I am also mindful of charges pending, together with the fact JG was previously released on two s. 31 undertakings, and that there is evidence to suggest JG has violated the latest s. 31 undertaking less than two weeks after it was entered into. Accordingly, I have no confidence that JG will abide by any type of release order. I find that detention is necessary for the protection or safety of the public having regard to all the circumstances including a substantial likelihood that JG will, if released, commit a further criminal offence. Although Mrs. G. is willing to act as the responsible person, she is simply not in a position to be able to do so. She has not been able to prevent her son from committing further offences or from violating his conditions of release. Bail is denied on the secondary ground under s. 515(10)(b) of the Criminal Code in relation to both informations.
________________________________
Pamela S. Williams
Judge of the Provincial Court