Youth Justice Court
Decision Information
Decision information:
Abstract: Transcript of an Excerpt from Proceedings (Ruling re Reverse Onus Show Cause)
Decision Content
Y-1-YO-2007-000094
IN THE YOUTH JUSTICE COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
S.K.
(A Young Person)
Transcript of an Excerpt from Proceedings (Ruling re
Reverse Onus Show Cause) heard before The Honourable
Judge R.D. Gorin, in Yellowknife, in the Northwest
Territories, on the 6th day of June, A.D. 2007.
APPEARANCES:
Ms. S. Smallwood: Counsel on behalf of the Crown
Mr. P. Falvo: Counsel on behalf of the Young Person
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Charges under ss. 145(5) C.C. and 334(b) C.C.
1 (EXCERPT FROM PROCEEDINGS - RULING RE REVERSE ONUS
2 SHOW CAUSE, YOUTH JUSTICE COURT)
3
4 THE COURT: Mr. K., a young person, is
5 charged with theft contrary to section 334(b) of
6 the Criminal Code and failing to attend court
7 contrary to subsection 145(5) of the Criminal
8 Code. Given that one of the charges is under
9 section 145(5), if this were in an adult court,
10 the applicability of sections 515(6) and 515(10)
11 of the Criminal Code would be very clear.
12 Section 515(6)(c) of the Criminal Code provides
13 that:
14 Notwithstanding any provision of
15 this section, where an accused is
16 charged ...
17 (c) with an offence under any of
18 subsections 145(2) to (5) that is
19 alleged to have been committed while
20 he was at large after being released
21 in respect of another offence
22 pursuant to the provisions of this
23 Part ... the justice shall order
24 that the accused be detained in
25 custody until he is dealt with
26 according to law, unless the
27 accused, having been given a
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1 reasonable opportunity to do so,
2 shows cause why his detention in
3 custody is not justified, but where
4 the justice orders that the accused
5 be released, he shall include in the
6 record a statement of his reasons
7 for making the order.
8 Subsection (10) deals with the grounds that
9 the court is required to consider, and were this
10 matter in adult court the accused would have to
11 satisfy the court why he ought to be released on
12 all three of the grounds that I am about to go
13 through.
14 Subsection (10) of 515 states:
15 For the purposes of this section,
16 the detention of an accused in
17 custody is justified only on one or
18 more of the following grounds:
19 (a) where the detention is necessary
20 to ensure his or her attendance in
21 court in order to be dealt with
22 according to law;
23 (b) where the detention is necessary
24 for the protection or safety of the
25 public, including any victim of or
26 witness to the offence, having
27 regard to all the circumstances
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1 including any substantial likelihood
2 that the accused will, if released
3 from custody, commit a criminal
4 offence or interfere with the
5 administration of justice; and
6 (c) on any other just cause being
7 shown and, without limiting the
8 generality of the foregoing, where
9 the detention is necessary in order
10 to maintain confidence in the
11 administration of justice, having
12 regard to all the circumstances,
13 including the apparent strength of
14 the prosecution's case, the gravity
15 of the nature of the offence, the
16 circumstances surrounding its
17 commission and the potential for a
18 lengthy term of imprisonment.
19 The third ground that I have just referred
20 to has been read down by the Supreme Court of
21 Canada to expunge the words "without limiting the
22 generality of the foregoing", so that it is only
23 in relation to the specific criteria set out in
24 that subsection that an accused can be detained
25 on the "any other just cause" ground set out in
26 515(10)(c).
27 This is a matter in Youth Justice Court and
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1 sections 28 and 29 of the Youth Criminal Justice
2 Act are applicable. I will start off with
3 section 28. Section 28 of the Act provides that:
4 Except to the extent that they are
5 inconsistent with or excluded by
6 this Act, the provisions of Part XVI
7 (compelling the appearance of an
8 accused and interim release) of the
9 Criminal Code apply to the detention
10 and release of young persons under
11 this Act.
12 What that means is the provisions of section
13 515 apply except where they are specifically
14 altered by those of the Youth Criminal Justice
15 Act.
16 Section 29(2), to some extent, alters the
17 provisions of the Criminal Code dealing with
18 judicial interim release. Section 29(2) states
19 that:
20 In considering whether the detention
21 of a young person is necessary for
22 the protection or safety of the
23 public under paragraph 515(10)(b) of
24 the Criminal Code, a youth justice
25 court or a justice shall presume
26 that detention is not necessary
27 under that paragraph if the young
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1 person could not, on being found
2 guilty, be committed to custody on
3 the grounds set out in paragraphs
4 39(1)(a) to (c) (restrictions on
5 committals to custody).
6 The present matter presents a case where
7 section 39(1)(a) to (c) would apply if Mr. K.
8 were found guilty of the charges he faces and
9 were being sentenced on the matters that I have
10 before the court. If that were to occur, I could
11 not sentence him to custody. However, that does
12 not mean that these proceedings are not reverse
13 onus. They are reverse onus. Mr. K. has to show
14 cause why he ought to be released but to do so he
15 need only address the first and the third grounds
16 set out in subsection 515(10) of the Criminal
17 Code. I am to presume that his detention is not
18 necessary in order to protect the public as set
19 out in section 515(10)(b) of the Criminal Code,
20 given the fact that he could not be committed to
21 custody if he were found guilty and sentenced on
22 these particular offences that I now have before
23 me.
24 The word "presume" as it is used in section
25 29(2) of the Youth Criminal Justice Act is
26 important because in my view in using the word
27 "presume", parliament has indicated its intention
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1 that, like all presumptions, it can be rebutted.
2 Here, the Crown has not attempted to do so.
3 At the end of the day under the current
4 circumstances that I have before me, I am left
5 with a situation where the within proceedings
6 dealing with the judicial interim release of the
7 accused are reverse onus. Mr. K. has to show
8 cause why he ought not to be detained but only in
9 relation to the first and third ground. The onus
10 is on the Crown to show why he ought to be
11 detained on the second ground. As stated, the
12 Crown has not attempted to do so.
13 Studies of mock juries have indicated that
14 lay people have a great deal of difficulty in
15 comprehending some legal concepts - not all of
16 them but some of them. The legal concept which
17 often seems to cause mock juries the most
18 difficulty are onuses: legal onuses, evidentiary
19 onuses and onuses of persuasion. In my view, the
20 Youth Criminal Justice Act has created a very
21 complicated scheme where the present
22 circumstances I have before me apply. I wonder
23 about the ability of anyone without formal legal
24 training to understand how to sort out all of
25 these different onuses.
26 In any event, I will do my best to sort them
27 out now.
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1 As I have indicated, the Crown has not
2 attempted to show cause why the young person
3 should be detained under the secondary ground and
4 in my view the young person has adequately
5 addressed the primary and the tertiary grounds
6 here in court today.
7 He is quite young; he was born in 1989, in
8 August. He has a criminal record but it is quite
9 brief and it is quite minor.
10 The package which has been worked on and
11 proposed by Mr. Falvo is practicable and it is on
12 that basis that I will order that the young
13 person, Mr. K., be released upon his entering
14 into an undertaking before me here today.
15 In particular, I am satisfied that the
16 arrangements which have been made with his
17 sister, N.R., are sufficient to address the
18 concern which I had in relation to the primary
19 ground.
20 He will be released upon his entering into
21 an undertaking. In addition to the statutory
22 conditions, the undertaking will provide the
23 following: He is to have no contact whatsoever
24 with J.G.; he is to reside at the residence of
25 N.R., his sister; he is also not to be outside of
26 that residence between the hours of 10:30 p.m.
27 and 9:30 in the morning; he is to obey all of the
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1 rules of the home of N.R.; he is to have no
2 visitors during the hours of the curfew.
3 Anything else?
4 MS. SMALLWOOD: Sir, I would just ask that he
5 not attend Centre Square Mall.
6 THE COURT: All right, thank you. He is
7 not to attend within 25 meters of Centre Square
8 Mall. That means you've got to cross the street
9 if you're going by that building. Do you
10 understand that?
11 THE YOUNG PERSON: Yes, Your Honour.
12 THE COURT: Anything else?
13 MS. SMALLWOOD: Nothing, Your Honour.
14 MR. FALVO: No, Your Honour, thank you.
15 THE COURT: Return date?
16 MS. SMALLWOOD: I would suggest next Monday at
17 1:30 for Youth Court.
18 THE COURT: Fine. So ordered.
19 You're in custody right now. You remain in
20 custody until you sign that undertaking.
21 THE ACCUSED: Yes, sir.
22 THE COURT: I believe that that's
23 everything, is it not?
24 THE COURT CLERK: Yes, sir, until 1:30.
25 (ADJOURNMENT)
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3 Certified to be a true and
accurate transcript pursuant
4 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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7 Annette Wright, RPR, CSR(A)
Court Reporter
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