Youth Justice Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Bail Release
Decision Content
R. v. T.S., 2013 NWTTC 10
Y-1-YO-2013-000048
IN THE YOUTH JUSTICE COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
T. S. (A Young Person)
_________________________________________________________
Transcript of the Reasons for Bail Release by The Honourable
Chief Judge R. D. Gorin, at Yellowknife in the Northwest
Territories, on April 23rd A.D., 2013.
_________________________________________________________
APPEARANCES:
Ms. W. Miller: Counsel for the Crown
Ms. C. Wawzonek: Counsel for the Accused
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1 THE COURT: This is my decision on the
2 Crown's request that T.S., a young person, be
3 detained until his charges are dealt with in
4 full. Mr. S. is charged with five offences,
5 all of which arise out of an incident that
6 occurred on or about March 10th of this year
7 in Yellowknife. He is charged with
8 1. Possessing a restricted firearm,
9 without a permit or license, contrary to
10 Section 95(a) of the Criminal Code.
11 2. Carrying a firearm for a purpose
12 dangerous to the public peace contrary to
13 Section 88 of the Criminal Code.
14 3. Carrying a concealed weapon contrary to
15 Section 90 of the Criminal Code.
16 4. Knowingly possessing a restricted
17 firearm in a motor vehicle contrary to
18 Section 94 of the Criminal Code.
19 5. Possessing cocaine for the purpose of
20 trafficking contrary to Section 5(2) of the
21 Controlled Drugs and Substances Act.
22 The newly enacted subsections (2) and (3)
23 of Section 29 of the Youth Criminal Justice
24 Act set out requirements that must be
25 fulfilled in order for the Court to order a
26 young person detained pending his trial.
27 Subsection (3) of Section 29 provides that
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1 the onus of satisfying the Court that the
2 necessary requirements have been fulfilled is
3 on the prosecution. This new provision, along
4 with the fact that the former subsection (2)
5 has been replaced with a complete process on
6 determining interim judicial release of young
7 persons, greatly simplifies matters. There no
8 longer exists the complex and somewhat
9 confusing regime concerning what could, for
10 example, result in the defence bearing the
11 onus on the primary and tertiary grounds, set
12 out in Section 515(10) of the Criminal Code,
13 and the Crown bearing the onus on the
14 secondary ground, all in the same hearing.
15 The new provisions appear to be a considerable
16 improvement in terms of clarity and
17 simplicity.
18 Subsection (2) of Section 29 provides that
19 number of requirements must be fulfilled in
20 order for the Court to order a young person
21 detained pending his trial.
22 The first requirement is set out in
23 subsection (2)(a) of Section 29.
24 (2) A youth justice court judge or
25 justice may order that a young
26 person be detained in custody only
27 if
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1 (a) the young person has been
2 charged with
3 (i) a serious offence, or
4 (ii) an offence other than
5 a serious offence, if they
6 have a history that indicates
7 a pattern of either outstanding
8 charges or findings of guilt.
9 So in order to detain a young person, he
10 must be charged with either a serious offence
11 or have a history that indicates a pattern of
12 outstanding charges or findings of guilt.
13 In this case, Mr. S. has no past criminal
14 record and no outstanding charges. The Crown
15 relies on the fact that the charges alleged
16 are "serious offences". As conceded by
17 defence counsel that requirement is met.
18 Section 2 of the Act defines a "serious
19 offence" as being an indictable offence under
20 on a act of Parliament for which the maximum
21 punishment is imprisonment for five years or
22 more.
23 Given the wording of this definition, the
24 maximum punishment referred to is of course
25 the maximum punishment for an adult. As
26 stated, all five of Mr. S.'s charges fit
27 within the foregoing definition.
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1 The next requirement that must be
2 fulfilled is set out in subsection (2)(b) A
3 young person cannot be detained unless
4 (b) the judge or justice is
5 satisfied on a balance of
6 probabilities,
7 (i) that there is a
8 substantial likelihood that,
9 before being dealt with
10 according to law, the young
11 person will not appear in
12 court when required by law to
13 do so,
14 (ii) that detention is
15 necessary for the protection
16 or safety of the public,
17 including any victim of or
18 witness to the offence,
19 having regard to all the
20 circumstances, including a
21 substantial likelihood that
22 the young person will, if
23 released from custody, commit
24 a serious offence, or
25 (iii) in the case where the
26 young person has been charged
27 with a serious offence and
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1 detention is not justified
2 under subparagraph (i) or
3 (ii), that there are
4 exceptional circumstances
5 that warrant detention and
6 that detention is necessary
7 to maintain confidence in the
8 administration of justice,
9 having regard to the
10 principles set out in Section
11 3 and to all the
12 circumstances, including
13 (A) the apparent strength of
14 the prosecution's case,
15 (B) the gravity of the offence,
16 (C) the circumstances surrounding
17 the commission of the offence,
18 including whether a firearm
19 was used, and
20 (D) the fact that the young
21 person is liable on being
22 found guilty for a potentially
23 lengthy custodial sentence.
24 So the subsection states that in order for
25 the Court to detain the young person, the
26 Court must find, on a balance of
27 probabilities, and once again I paraphrase,
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1 that either there is a substantial likelihood
2 that a young person will not show up for
3 court; or, that the young person's detention
4 is necessary to protect the safety of the
5 public, including any victim or witness to the
6 offence, having regard to all the
7 circumstances, including the substantial
8 likelihood that the young person will, if
9 released, from custody commit a serious
10 offence (which has previously been defined);
11 or, where there are exceptional circumstances
12 that warrant detention and detention is
13 necessary to maintain confidence in the
14 administration of justice, having regard to
15 the principles set out in Section 3 of the
16 Youth Criminal Justice Act, and to all the
17 circumstances including, but not limited to,
18 certain enumerated factors which I won't
19 repeat.
20 For the purpose of analysis, I think that
21 there are a number of phrases used in
22 subsection (2)(b) that requires some
23 clarification. The first is the term
24 "substantial likelihood" which appears twice
25 in subparagraph (2)(b). Some may think it
26 interesting that the wording of the subsection
27 requires that the Court find, on a balance of
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1 probabilities, that a substantial likelihood
2 exists. However the word "likelihood" can be
3 differentiated from the word "likely".
4 A likelihood can be described as a chance,
5 risk, threat or danger. Certainly that was
6 the view expressed by the Alberta Court of
7 Appeal in the case of R. v. Link, 1990 ABCA
8 55.
9 As stated by Justice Herradence speaking
10 for the entire Court,
11 We do not understand the word
12 "likelihood" in Section 515(10)(b)
13 of the Criminal Code to be
14 synonymous with the word
15 "probability". That term is often
16 used in the law meaning more
17 likely than not. We are of the
18 view that substantial likelihood
19 in the section means simply a
20 substantial risk. The only
21 reasonable conclusion in the
22 circumstances of this case is that
23 such risk exists. The order of
24 the learned chambers judge must be
25 set aside and the respondent is
26 ordered detained.
27 So I must first ask myself whether or not
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1 there is a substantial risk that the accused
2 will not show up for court if bail is granted.
3 Certainly the Crown has alleged no
4 criminal record; however, Mr. S. also has no
5 ties to the community of Yellowknife. He
6 resides outside of the Northwest Territories
7 in British Columbia. He is only 18 years old
8 and it is not clear whether on his own he has
9 the means, or at least the legitimates means,
10 to travel from his place of residence in BC to
11 Yellowknife where his court proceedings would
12 take place. I have not been advised of any
13 assets that he could liquidate and these
14 factors cause me to conclude that, without
15 adequate safeguards, there is a substantial
16 risk that he would not attend court when
17 required to do so.
18 Next, I must ask myself whether it has
19 been established that detention is necessary
20 to protect the public. Once again I must
21 consider that Mr. S. has no criminal record
22 whatsoever. However, I also take into account
23 the fact that the Crown alleges that the
24 accused young person was involved in
25 gang-related activity.
26 I also bear in mind the specific nature of
27 the allegations which involve the use of a
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1 firearm which Mr. S. is said to have
2 possessed. It is alleged that he possessed it
3 and passed it to his co-accused Mr. Petten,
4 who was the far more threatening of the two
5 during the circumstances which led to their
6 arrest.
7 In answering whether Mr. S.'s detention is
8 necessary to protect the public, I am required
9 to consider whether there is a substantial
10 risk that he would commit a serious offence if
11 released. I think that the allegations
12 strongly suggest that Mr. S. is involved, to
13 at least some degree, with organized crime as
14 that term is defined in the Criminal Code.
15 His co-accused, an adult, stated that he, that
16 is the adult, was a member of the Nomads who
17 the Crown described as an "outlaw motorcycle
18 gang".
19 Mr. S., along with Mr. Petten, is said to
20 have banged on the door to the Raven. Mr.
21 Petten is alleged to have yelled "you want
22 some heat?" and "who wants to get shot?"
23 while patting his belt line. The Crown says
24 that witnesses observe the two passing a
25 firearm between them. Obviously the
26 circumstances that are alleged were very
27 threatening.
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1 It is alleged that the two left in a cab
2 following this incident. The Crown advises
3 that the taxi driver saw Mr. Petten pass the
4 gun back to Mr. S. while in the taxi.
5 The two were eventually arrested. The
6 handgun, a 45 calibre semiautomatic Remington,
7 was found on the floor of the cab along with
8 six bullets loaded in the magazine. Mr.
9 Petten was found with a cell phone and a
10 substantial amount of cash. Mr. S. was found
11 holding two baggies of powder cocaine weighing
12 2 grams and five baggies of crack cocaine
13 weighing 2.7 grams.
14 As stated, there is a strong suggestion
15 that the accused is associated with organized
16 crime, whether or not he is associated with
17 the actual organization referred to by his
18 co-accused.
19 Due to this factor and given the
20 allegations and the strength the Crown's case,
21 which appears, on its face, to be solid, I
22 find that if the accused were left to his own
23 devices, there would exist a substantial risk
24 that he would commit a serious offence if
25 released. This concern is such that I find
26 that, without adequate safeguards, his
27 detention is necessary in order to protect the
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1 public.
2 Next I must consider the application of
3 subparagraph(2)(b)(iii). Subparagraph(2)(b)(iii)
4 requires in order for it to apply that
5 detention must not be justified under
6 subparagraph (i) or (ii).
7 I take this to mean that for subparagraph
8 (2)(b)(iii) to apply, the accused must not
9 ultimately be ordered detained on either the
10 primary or secondary ground. It would result
11 in an absurdity if the tertiary ground could
12 not apply to a situation where the risks
13 referred to in subparagraph (2)(b)(i) and (ii)
14 (the primary and seconday grounds) are made
15 out but where the accused would otherwise be
16 released on conditions that adequately address
17 those risks.
18 Having said that, I find that the tertiary
19 ground set out in subparagraph (2)(b)(iii)
20 does not apply in the present case.
21 R. v. W. (R.E.) (2006), 205 C.C.C. (3d)
22 183, 36 C.R. (6th) 134 (Ont. C.A.) is a case
23 that deals with the application of the
24 "exceptional cases" gateway to custody
25 provided for by Section 39(1)(d) of the Youth
26 Criminal Justice Act. However, it is a useful
27 decision in determining what the term
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1 "exceptional circumstances", as it is used in
2 subsection 29(2)(b)(ii) requires.
3 The Court considered the interpretation of
4 the word "exceptional" at length. The Court
5 held that the bulk of the existing
6 jurisprudence was consistent with the term
7 "exceptional" meaning the "clearest of cases".
8 The Court ultimately held that exceptional
9 cases, as the term is used in Section 39(1)(d),
10 are limited to the clearest of cases where a
11 custodial disposition is obviously the only
12 disposition that can be justified.
13 For the reasons articulated by the Ontario
14 Court of Appeal in R. v. W.(R.E.), I find that
15 the term "exceptional circumstances" used in
16 subsection 29(2)(b)(iii) limits application of
17 the tertiary ground set out in that
18 subparagraph to the clearest of circumstances.
19 The fact that a particular crime is rare will
20 not in and of itself bring it within the scope
21 of the exceptional circumstances requirement.
22 Nor will the fact that a crime is not rare
23 necessarily remove it from the exceptional
24 circumstances requirement.
25 As I have stated, the Crown's case appears
26 solid and the offences are serious and a
27 firearm is alleged to have been used. However
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1 the accused's actions and involvement appear
2 to have been far less threatening than those
3 of his alleged accomplice.
4 As far as the prospect of a lengthy
5 custodial term being imposed is concerned, the
6 Crown is, I am told, not attempting to deal
7 with Mr. S.'s matters in adult court. Ms.
8 Wawzonek contends that even if Mr. S. were
9 convicted on all of the counts on the court,
10 the Keinapple principle might well prevent
11 convictions from being entered on all of those
12 counts. Under the circumstances I find it
13 unnecessary to determine whether Ms. Wawzonek
14 is correct in that regard. All of the charges
15 arise from the same set of circumstances.
16 Even if Keinapple does not apply, it would
17 seem clear that if Mr. S. were convicted on
18 all counts and custody were imposed on all
19 counts, a number of the custodial terms would
20 be concurrent.
21 I do not think it has been established
22 that this matter falls within the clearest of
23 cases where detention is required in order to
24 maintain confidence in the administration of
25 justice.
26 The allegations are certainly very
27 disturbing; however, I find that the present
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1 circumstances are not such that a reasonable
2 and fully informed individual, appreciating
3 the presumption of innocence, the Charter
4 right but not to be denied reasonable bail
5 without just cause, the factors set out in
6 Section 3 of the Youth Criminal Justice Act,
7 and the specific factors enumerated in
8 subparagraph (2)(b)(iii), including the
9 alleged use of the firearm, would lose
10 confidence in the administration of justice
11 were Mr. S. released. I think that a
12 reasonable person would appreciate that, where
13 circumstances permit, a person accused of even
14 a serious crime should not be, in effect,
15 punished prior to being found guilty.
16 After having gone through the analysis
17 required by Section 29(2), I find that the
18 necessary requirements for a detention order
19 set out in subparagraphs (2)(a) and (b) are
20 present. However, in order to detain the
21 accused young person I must also find that the
22 requirements of subparagraph 2(c) are met.
23 That subparagraph requires that
24 (c) the judge or justice is
25 satisfied, on a balance of
26 probabilities, that no condition
27 or combination of conditions of
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1 release would, depending on the
2 justification on which the judge
3 or justice relies under paragraph (b)
4 (i) reduce, to a level below
5 substantial, the likelihood
6 that the young person would
7 not appear in court when
8 required by law to do so,
9 (ii) offer adequate
10 protection to the public from
11 the risk that the young
12 person might otherwise
13 present, or
14 (iii) maintain confidence in
15 the administration of
16 justice.
17 Subparagraph 2(c)(iii) is not applicable
18 since I have already found that the tertiary
19 ground does not apply. I therefore need only
20 consider whether the Crown has established, on
21 a balance of probabilities, that subparagraph
22 (2)(c)(i) or 2(c)(ii) are not made out.
23 The first question that I must ask myself
24 is whether or not it has been established, on
25 a balance of probabilities, that there is no
26 release plan that would reduce the risk that
27 the accused will not show up to court to a
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1 level that is not substantial.
2 Defence counsel proposes that during
3 weekdays Mr. S. reside with a close family
4 friend Ms. Duggan in Aldergrove, British
5 Columbia. His stepmother, who has acted as
6 his parent for many years, also lives in
7 Aldergrove with two other brothers of Mr. S.
8 It is proposed that Mr. S. live with her on
9 weekends when he is not working, should he
10 find work. Ms. Wawzonek also proposes that a
11 round-trip ticket be purchased and a copy of
12 the ticket be provided to the clerk of the
13 court in order to demonstrate that Mr. S. has
14 the financial ability to return for court in
15 the future. She proposes that both the mother
16 and Ms. Duggan act as sureties. She proposes
17 a telephone reporting condition to the RCMP in
18 Yellowknife. She requests that Mr. S. be
19 required to surrender himself to the RCMP, in
20 Yellowknife, 48 hours before his next required
21 court appearance. She states that if he does
22 not so report or surrender, he can be
23 immediately arrested.
24 I find that the foregoing plan does not
25 completely eliminate the risk that Mr. S. will
26 not attend court. But that is not the
27 question that I must answer. I must consider
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1 the plan and ask myself whether or not I am
2 satisfied on a balance of probabilities that a
3 practicable release plan will not reduce to a
4 level below substantial the risk that Mr. S.
5 will not attend court as required.
6 I find that in this instance,
7 notwithstanding Ms. Miller's capable efforts,
8 the Crown has not met its onus. However, I
9 also find that in addition to what defence
10 counsel originally proposed, significant
11 financial sureties are required, from each of
12 the personal sureties suggested, in order to
13 lessen the risk to the required level.
14 Next, I have to ask myself whether or not
15 it has been established on a balance of
16 probabilities that any viable release plan
17 would not adequately protect the public.
18 Placed within the context of my previous
19 analysis under subparagraph (2)(b)(ii), the
20 question might be framed as being whether a
21 release plan could reduce the risk of Mr. S.
22 committing a serious offence to the point that
23 it is not a substantial risk.
24 Once again the fact that Mr. S. has no
25 criminal record is of importance when
26 assessing whether or not the risk of him
27 committing serious offences can, through
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1 conditions of release, be reduced to a level
2 below substantial.
3 The absence of a record shows that he has
4 previously been of good behaviour.
5 The fact that Mr. S. will be in British
6 Columbia, except when he attends Yellowknife
7 Court and surrenders himself to the RCMP
8 detachment, will actually afford protection to
9 witnesses and any alleged victims.
10 Defence counsel further proposes that Mr.
11 S. be under house arrest unless he is working
12 or in one of his sureties' immediate company.
13 Once again, I think with adequate
14 financial sureties provided by each of the
15 personal sureties, the proposed plan
16 considerably lessens the risk that further
17 crimes will be committed by Mr. S.
18 Given his apparent association with
19 organized crime, the possibility of further
20 crimes was my primary concern. I think that
21 the conditions proposed lessen the risk of
22 further serious offences to a level below
23 substantial. They also reduce my already
24 limited concerns that Mr. S. might pose a
25 threat to the safety of witnesses or alleged
26 victims.
27 After considering the conditions proposed
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1 by defence counsel, I find that, with the
2 personal sureties suggested and with the
3 further monetary sureties that I think are
4 necessary, the Crown has not discharged its
5 onus. I find that at the end of the day I am
6 not satisfied that it has been established on
7 a balance of probabilities that the proposed
8 plan would not offer adequate protection to
9 the public from the risk that Mr. S. might
10 otherwise present.
11 Therefore I order him released on
12 conditions. The conditions will, to a large
13 extent, be those suggested by defence counsel.
14 Mr. S. will be released upon his entering
15 into a recognizance. Ms. Duggan and his
16 stepmother are to both act as sureties and
17 both are to deposit $250 and pledge $1500 as
18 monetary sureties.
19 He is to provide a copy of a return ticket
20 in his name, both to and from British
21 Columbia, to the clerk of the court. This
22 will have to be done in order to perfect the
23 recognizance.
24 The acknowledgment of surety forms will
25 also need to be signed off in the amounts that
26 I have indicated in order for the recognizance
27 to be perfected.
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1 He is to reside with Ms. Duggan at her
2 place of residence from Monday to Friday.
3 That will be at the address referred to by
4 counsel.
5 He is to reside with his stepmother on the
6 weekends, also at the address provided by
7 counsel.
8 He is to report to the RCMP detachment in
9 Yellowknife by telephone each Friday between
10 the hours of nine in the morning and 4:30 in
11 the afternoon.
12 He is not to be outside of his place of
13 residence at any time except for the purpose
14 of going to and from and attending his place
15 of employment in Aldergrove, British Columbia
16 should he obtain employment. And to be clear,
17 that will be half an hour before work begins
18 and half an hour after work ends.
19 The other exception will be to travel to
20 Yellowknife for court.
21 He is not to attend his father's place of
22 residence under any circumstances.
23 He is to have no contact whatsoever
24 indirectly or indirectly with Mr. Petten.
25 What was the full name? In any event, you
26 can provide that, Ms. Miller, to the clerk of
27 the court.
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1 MS. MILLER: Thank you, sir.
2 THE COURT: I don't believe that the
3 names of any witnesses or victims have been
4 provided with the exception of Ms. Bardak. So
5 to be on the safe side he is to have no
6 contact whatsover directly or indirectly with
7 Lydia Bardak.
8 He is not to possess any cellular
9 communication device, any firearm, ammunition,
10 explosive device, or any other weapon. The
11 only exception will be that he will be allowed
12 to possess a knife while eating a meal for the
13 purpose of eating a meal.
14 He is not to possess or consume alcohol or
15 any other intoxicants except in accordance
16 with a prescription from a licensed medical
17 practitioner.
18 He is to surrender himself into the
19 custody of the Royal Canadian Mounted Police
20 in Yellowknife at least 48 hours prior to his
21 attendance in court where his attendance is
22 required. Upon his arrival in Yellowknife,
23 for the purpose of attending court, he is to
24 immediately proceed to the local RCMP
25 detachment for the purpose of surrendering
26 himself into custody.
27 There will be a Form 8 and a Form 19 for
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1 the return date. What are you suggesting,
2 counsel?
3 MS. WAWZONEK: Perhaps two weeks, Your
4 Honour.
5 THE COURT: Two weeks. When would that
6 be - May the 7th?
7 MS. WAWZONEK: Yes, it is. Actually, Your
8 Honour, I apologize, I'm in the Supreme Court
9 that week. May 13th, please.
10 THE COURT: May 13th, 9:30. Of course
11 you can appear on his behalf should you file
12 the necessary designation of counsel.
13 MS. WAWZONEK: Your Honour, the only way
14 that I will be able to do that is if he enters
15 an election.
16 MS. MILLER: I can elect.
17 THE COURT: Although I think that --
18 MS. MILLER: -- I am in a position to
19 elect, Your Honour. We are proceeding by
20 indictment.
21 THE COURT: And of course Section 5(2)
22 of the Controlled Drugs and Substances Act is
23 indictable by law. Fair enough.
24 MS. WAWZONEK: Yes, Your Honour.
25 THE COURT: You don't know if you are
26 counsel of record at this point?
27 MS. WAWZONEK: I won't, and the problem
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1 with Legal Aid is he can't make the
2 application until he has made his election.
3 THE COURT: I am just saying that you
4 could.
5 MS. WAWZONEK: Yes, sir. If the Court and
6 the Crown will allow, I certainly would intend
7 to continue to appear and I would expect that
8 I would in due course be counsel of record.
9 THE COURT: Fine. I am not going to
10 make any order under the circumstances.
11 MS. WAWZONEK: Thank you, sir.
12 THE COURT: So then to that date, and
13 9:30 is fine with you?
14 MS. WAWZONEK: Yes please, sir.
15 THE COURT: Anything further on this?
16 I can't think of anything but I may have
17 missed something.
18 MS. WAWZONEK: I don't think so, Your
19 Honour.
20 THE COURT: Ms. Miller?
21 MS. MILLER: No, Your Honour, I believe
22 you covered all of the conditions which were
23 discussed before, thank you.
24 THE COURT: Thank you both for your
25 assistance, you have both been helpful.
26 (ADJOURNED)
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accurate transcript pursuant
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11 Lois Hewitt,
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