When Can A Young Person Be Detained On The Tertiary Grounds?

Youth bail hearings are legally distinct from adult bail hearings.

For example, in all youth bail hearings, the Crown bears the onus to justify detention or even conditions of release: YCJA s. 29(3). By contrast, in adult bail hearings, sometimes the onus is on the defendant to justify his or her release from custody: Criminal Code s. 515(6).

Another key difference between the two bail regimes is how the tertiary grounds are applied. For youth bail hearings, we must look at the specific language contained in YCJA section 29(2)(b)(iii):

(iii) in the case where the young person has been charged with a serious offence 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 the administration 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;

A few key points of distinction with the adult Criminal Code are worth highlighting.

  1. A young person must be charged with a “serious offence” for the tertiary grounds to be applied. A “serious offence” is defined under YCJA section 2 as “an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more.”

 

  1. The Supreme Court held in St-Cloud that under the Criminal Code the tertiary ground is “not necessarily limited to exceptional circumstances, to the most heinous of crimes involving circumstances similar to those in Hall, or to certain classes of crimes”: see para 54. But under the YCJA, the tertiary ground is limited to “exceptional circumstances” – indeed, it is a statutory pre-requisite under section 29(2)(b)(iii).

 

  1. “Exceptional circumstances” are not defined under the YCJA. However, under YCJA section 39(1)(d), a young person may be sentenced to custody in an “exceptional case.” That provision was interpreted narrowly in R v REW 2006 CanLII 1761 (ON CA) as “limited to the clearest of cases” including those “where the circumstances are so shocking as to threaten widely-shared community values”.

 

Very few reported decisions have applied the tertiary grounds in a youth bail hearing. However, the youth justice court did so in R v K.K., 2018 ONCJ 751.

The young person was charged with three bank robberies. An imitation firearm was used in the robberies. The young person was also on a bail order at the time – for another robbery – and there was evidence he had breached it on several occasions.

The Crown sought his detention on the secondary and tertiary grounds. The Court granted the Crown’s application on both grounds. It is the Court’s analysis of the tertiary grounds that I find particularly interesting.

The Court found that the “exceptional circumstances” test in YCJA s. 29(2)(b)(ii) had been met based on the following:

  1. The robberies were planned, and involved multiple defendants;
  2. There was a high level of violence associated with the robberies;
  3. The young person appeared to be “ungovernable”, as he flagrantly violated the terms of a prior strict bail order he was bound by;
  4. His parents were “enablers”, who seemed to be oblivious to the serious nature of K.K.’s involvement in the robberies, the evidence against him, and his utter disregard for the prior bail order that was expected to follow.

This is the first reported decision I am aware of that found the “exceptional circumstances” element of the test in the YCJA can be met by virtue of both a strong Crown case, very violent crimes, and evidence the young person simply refuses to follow court orders. These are clearly relevant, but whether they are truly “exceptional circumstances” remains unsettled by the case law.

It will be interesting to see if future courts apply this interpretation or if other courts find something more is required to engage the tertiary grounds in youth court.

 

 

 

Is Possession Of Fentanyl A “Violent Offence”?

Can drug possession ever constitute a “violent offence” under the YCJA? What if the drug is inherently dangerous, and is known to cause serious bodily harm to persons willing to ingest it?

 Defining A “Violent Offence”

Under the YCJA’s sentencing provisions, if an offence can be designated a “violent offence” a young person may be sentenced to custody. But what constitutes a “violent offence” is not often clear.

When the YCJA was first enacted, there was no statutory definition of a “violent offence”. The Supreme Court of Canada later held that a violent offence was one where the offender caused, attempted or threatened bodily harm: see R v CD, 2005 SCC 78.

In 2012, Parliament amended the Act and a statutory definition now exists:

  • An offence committed by a young person that includes as an element the causing of bodily harm;
  • An attempt or a threat to commit an offence referred to in paragraph (a); or
  • An offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

R v TP, 2018 BCPC 242

In R v T.P., 2018 BCPC 242, a young person was found to be in possession of a large quantity of fentanyl.  Inside a hotel room associated to him, police officers located 1400 “spitballs” of narcotics, a digital scale, cash and score sheets. The street value of the drugs was over $20,000. The spitballs contained fentanyl with a purity of between 5.1 and 5.7%.

T.P. was charged with possession of a controlled substance for the purposes of trafficking .The Crown alleged the crime was a “violent offence” due to the dangers associated with fentanyl. In particular, users are known to die from consumption.  The Court accepted there was  a risk of death to users that was disproportionate to that of other illicit drugs.

But the Crown had to prove that the offence created a substantial likelihood of causing bodily harm to meet the definition of “violent offence.” The Court determined that a young person had to engage in criminal activity that created a “high degree of probability” of causing bodily harm for the substantial likelihood test to be met.

Expert evidence led in the sentencing hearing only concluded that the risk of fentanyl consumption was “highly variable” and that not every user would suffer death or serious bodily harm.

As a result, the Court concluded the risk posed by fentanyl was still unpredictable, and thus the offence was not a “violent offence.”

 

Majority Of The ABCA Upholds Jordan for Youth Cases; Dissent Sets Limit at 15 mos.

We finally have an appellate decision on the application of Jordan timelines to youth justice proceedings!  And things remain… not terribly clear.

The Majority

A majority of the Alberta Court of Appeal in R v KJM, 2018 ABCA 278, has upheld the 18 month limit in provincial court to young persons. The decision notes that the Supreme Court in Jordan said nothing that even “remotely suggests the presumptive ceilings it fashioned do not apply to young persons tried in youth justice courts” (see para 33.)

The majority did leave open the possibility of revisiting this issue in the future if evidence were presented that shorter time periods for trials in youth court were somehow linked to the rehabilitative goals of the youth justice system. For example, should expert evidence be presented in a future case that rehabilitative outcomes for youth were markedly different if their cases were adjudicated faster, that could influence the court’s analysis.

A concurring judgment by O’Ferrall J.A. noted that timely intervention for youth matters does not always necessarily mean a timely trial. Sometimes postponing a prosecution may be to a young person’s advantage. For example, if it allows Crown counsel to consider diversion or the attempt to complete extra-judicial measures before a final decision about a case is made.

Furthermore, young persons’ perception of time varies greatly with age (they are, after all, anywhere from 12-17 years old), and there is simply no basis for a presumptive ceiling in youth court: see para 75.

The Dissent

Veldhius J.A. dissented. holding that a ceiling of 15 months in provincial court was appropriate for youth matters.

The Supreme Court in Jordan held that the justice system needed to change courtroom culture and facilitate a more efficient justice system. Applying this sentiment to the youth justice system mandates a different result for young persons.

Young persons are simply different than adults. Their ability to appreciate the consequences between behaviour and consequences is less developed. Long delays may inhibit the effectiveness of rehabilitative measures.  And as a young person’s perception of time may be distorted, greater delays may increase prejudice and stress. Additionally, memories of young witness tend to fade more quickly. This may impact on a young person’s ability to effectively make full answer and defence.

The criminal justice system has always recognized that young persons require enhanced procedural protections. To breathe life into Jordan and apply it appropriately in youth court requires a new ceiling be established of 15 months: see paras 115-116.

Commentary

This is the first appellate decision in Canada on the applicability of Jordan to youth cases and we have a majority with two sets of reasons and a dissent. A fundamental divide has emerged in the judiciary, centered on whether or not Jordan invites a different ceiling for youth matters or if the Supreme Court’s silence on the issue means it is not for other courts to invent their own timelines.

Some courts continue to insist on new “evidence” being presented to justify a lower ceiling for youth matters as well. I find this to be surprising, given the immense amount of scientific literature that already exists on the benefits of adjudicating youth cases faster than adult ones. Perhaps it has not been properly presented to an appellate court yet.

Should this case be appealed to the Supreme Court of Canada, I have no doubt several interested parties will do so.

Why The Passage of Time In Youth Proceedings Matters

How should a youth justice court sentence a young person when nearly 4 years have passed since the offence date?

The passage of time is a significant factor in youth proceedings. Section 3 of the YCJA mandates that the youth justice system prioritize “timely intervention that reinforces the link between the offending behaviour and its consequences”.  Unfortunately, sometimes cases take a surprisingly long period of time to come to a conclusion.

In R v P.R. 2018 SKCA 27, the Sask. Court of Appeal reviewed a youth justice court’s sentencing decision in a very serious sexual assault case. The victim, the appellant’s niece, was s only 11 years old at the time of the offence. The sexual assault involved forced intercourse. It caused her serious psychological harm.

The trial judge imposed an 18 month custody and supervision order.  But the Court of Appeal reduced this to a period of 12 months probation in light of two very significant factors.

First, there was significant delay in concluding the case. The offence occurred on November 25, 2012, but the appellant was not sentenced until June 7, 2016. The Court of Appeal noted that young persons perceive time differently than adults, and the passage of time has a greater impact on them. Due to their less developed memories, it is important that they appreciate the relationship between the offending behaviour and the consequences that flow from it.

Significant delay between the commission of the offence and the time of an appeal was held to be a “worthy consideration” when determining the fitness of a sentence for a young person. Since the young person had made many positive lifestyle choices including furthering his education. He had been on release conditions for nearly 5 years by the time his appeal was heard.

Second, by the time the appeal was heard, the appellant was a young adult. If the original sentence was upheld, the appellant would have had to step into an adult facility to serve it as a result of YCJA s. 89. (He was granted bail pending his appeal.)   The impact of sending a young person into an adult facility due to the lengthy delay caused by the justice system is a factor a court must also consider.

The case underscores the importance of timely intervention in the youth justice system and the surprising – and very serious – consequences that can result when that same system falters in this regard.

 

15 month ceiling established for youth cases in Ontario – and soon to be 12?

Apologies for the lack of summer posts. I hope to get back to regular blogging soon.

Another decision from the Ontario Youth Court of Justice has been released holding that the Jordan ceiling of 18 months is too high for youth cases. In R v ZN, 2018 ONCJ 501, a ceiling of 15 months was established.

The Youth Justice Court noted that under the pre-Jordan Charter s. 11(b) jurisprudence, both the Ontario Court of Appeal and the Supreme Court of Canada recognized that youth trials should proceed quicker than adult trials.  The amount of delay that was constitutionally tolerable for youth cases was also held to be lower than for adult cases.

The Court also noted that merely because the Supreme Court was silent on youth cases in Jordan does not mean that the 18 month ceiling therefore applies in youth court. Indeed, such an interpretation would effectively reduce the substance of young person’s s. 11(b) Charter rights.

As a result, not only did the Court hold that a 15 month ceiling was appropriate, but it went to state that it should be lowered to 12 months in the near future.

BCCA: Unlawful Access Of Youth Records Precludes Using Them At Trial

Part VI of the YCJA governs access and use of youth records. It is notoriously complex and difficult to understand. But mastering its provisions is essential to the proper practice of criminal law – but in adult, and youth court.

A recent decision of the British Columbia Court of Appeal demonstrates why. In R v Hammerstrom, 2018 BCCA 269, the accused wanted to cross-examine a key Crown witness on his prior criminal convictions. This can be done by virtue of section 12 of the Canada Evidence Act. But in this case, one prior entry was a finding of guilt in youth court from many years earlier.

Section 82 of the YCJA permits cross-examination of a witness on findings of guilt in youth court. It incorporates, by reference, section 12 of the CEA.  But can counsel at a trial in adult court simply ask a witness about prior findings of guilt as a youth based on this section, or must counsel bring an application first to gain lawful access to the records under Part VI of the YCJA?

The BCCA held that cross-examination of a witness on prior youth findings of guilt was not permitted unless the youth records relating to those findings of guilt had been lawfully obtained. In Hammerstrom’s case, his lawyer attempted to cross-examine the Crown’s key witness on a prior youth finding of guilt without first having obtained a youth court order granting him lawful access. This was not permissible.

In the judgment of the Court:

It would be inconsistent with the language, structure, and purpose of the YCJA to find that the provisions governing use of records are completely divorced from the provisions governing access to those records. There would be no protection of a young person’s privacy if an accused could use the records without restriction. It would also circumvent the procedure in s. 123 which generally requires that notice be given to the young person whose records are being sought.

 

Observations:

This is the first appellate decision to settle a conflict between some trial level decisions in this area. Counsel must diligent seek out any youth records before trial. This should be done in the Youth Court of Justice, which will almost always be a Provincial or Territorial Court of Justice. Superior Courts are rarely constituted as youth justice courts.

But it is clearly wrong, and indeed, arguably an offence, to question a witness about a prior youth court record without having lawfully obtained access to that record first.

 

 

Youth Statement Excluded On Appeal; New Trial For 1st Degree Murder

Last week the Ontario Court of Appeal released its decision in R v NB, 2018 ONCA 556. N.B. was convicted on February 20, 2009 for the 1st degree murder of his cousin, B. The murder occurred on March 9, 2006. He received an adult sentence of life imprisonment with no possibility of parole for 10 years.

The appeal decision focused on whether or not a statement N.B. gave to the investigating officers was taken in compliance with the requirements of section 146 of the Youth Criminal Justice Act. The Court ruled there was violations of that section and excluded the statement from evidence.

The decision has many interesting aspects regarding the scope and depth of section 146. This blog post will focus on what I consider to be the most important features of the decision.

The Facts

In brief, N.B. and B.B were cousins. On March 9, 2006, they had been hanging out together. Eventually, N.B. and B.B. became separated. B.B’s body was found by a creek. He had been stabbed to death.

N.B. was acting out at the scene when the police arrived. He was agitated. One officer alleged he had been physical with him and arrested N.B. for obstructing police. He was taken into custody. At that point, it does not appear the police had any grounds to charge him with B.B.’s murder.

N.B. was taken to the police station for custody. He had not been formally charged. He was never told he did not need to go to the police station for questioning. It was his choice. The police had decided not to charge him with obstruct police either but he was not informed of that decision either.

At approximately 10pm, N.B. was taken to an interview room at the police station. The room was locked. N.B. was never told why he was there, that he did not have to be there (he was not formally in custody) and that he did not have to speak to the police. He was also never told he could leave at any time.

After nearly an hour of questioning, the police now viewed N.B. as a possible suspect. He was left alone for nearly 3 hours. At approximately 2am, they formally arrested him and charged him with 1st degree murder.

YCJA section 146(2)

YCJA s. 146(2) sets out certain criteria that must be complied with by police or other persons in authority before any oral or written statement statements made by a young person to police will be admitted in a proceeding against that young person.

No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless

(a)        The statement was voluntary;

(b)        The person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that

(i)         the young person is under no obligation to make a statement,

(ii)        any statement made by the young person may be used as evidence in proceedings against him or her,

(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and

(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;

(c)        The young person has, before the statement was made, been given a reasonable opportunity to consult

(i)           with counsel, and

(ii)              with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and

(d)        If the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

There are three preconditions to the application of the section: arrest, detention, or reasonable grounds for believing the young person has committed an offence.

The section then mandates both informational and implementational duties on police officers.

As explained in R. v. L.T.H., 2008 SCC 49, no statement by a young person to a person in authority will be admissible in evidence against that young person unless:

(i)       the statement was voluntary;

(ii)      the person who took it “clearly explained to the young person, in language appropriate to his or her age and understanding” the young person’s right to silence and right to consult counsel and another appropriate adult (and the requirement that any person consulted be present during the interview); and

(iii)    the young person was given a reasonable opportunity to exercise those rights.

Key Holdings In N.B.

  1. The “Triggering Mechanism” And Onus

In a standard Charter application, the onus rests with the applicant to demonstrate his or her rights were violated on a balance of probabilities. For example, if an accused person alleged he was detained by the police unlawfully in violation of section 9 of the Charter, that standard would apply.

In N.B. one of the issues that arose on appeal was who bore the onus with respect to the “triggering mechanism” of section 146 of the YCJA. The Court of Appeal ruled that unlike in a Charter application, where the onus fell on the applicant, the onus under section 146 of the YCJA rests with the Crown. Thus, the Crown had the onus to prove the young person was not arrested or detained, or that the peace officer did not have “reasonable grounds for believing the young person has committed an offence”.

Furthermore the standard was proof beyond a reasonable doubt: N.B. at para 98.

  1. Psychological Detention

The test applicable to determining whether a psychological detention has occurred under s. 146(2) was explained by the Court of Appeal in an earlier decision, R. v. Todorovic, 2014 ONCA 153. The Court of Appeal confirmed that the test from R. v. Grant, 2009 SCC 32 for psychological detention under ss. 9 and 10 of the Charter applies to s. 146(2) of the YCJA.

As explained in the decision, the Supreme Court summarized the law on detection in Grant:

  1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint.

 

  1. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

 

  1. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.  To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider [a variety of factors].

In N.B., the Crown attempted to argue that no psychological detention had occurred as N.B. was not formally under arrest and was at the station simply to answer questions. The trial judge analyzed N.B.’s conduct with the police and found he was not psychologically detained. But the Court of Appeal held this was unreasonable. Rather, it clarified that even if a young person displayed “bravado and braggadocio”, that does not mean a young person will appreciate the consequences of making a statement to the police.

Furthermore much turned on what the appellant was not told – that he was not there as a suspect (initially); that he was not obliged to give a statement; and that he was free to leave.

The case makes it clear that the threshold for psychological detention may be crossed far sooner for a young person than for an adult.

  1. Whether The Arrest or Detention Must Related To The Ultimate Charge

The Crown argued on appeal that even if the young person was detained, he was only detained on the offence of obstruct police, but not murder. Thus, any statements he gave would be admissible on a future charge of 1st degree murder.

This argument was soundly rejected.

As soon as a young person is detained, he must be afforded his rights. If a statement is ultimately given, it does not matter which offence it relates to. As a result, since N.B. was detained initially on the basis of the obstruct police allegation, that was sufficient to trigger his rights under s. 146 of the YCJA.

(Ed: I wish to add here that it has long been held under s. 10(a) of the Charter that once a detainee’s jeopardy changes the police are obligated to advise him of that change and re-advise him of his rights: see R v Evans, [1991] 1 SCR 869.)

Conclusions and Observations

The facts of this case demonstrate why it is crucial that police officers take care to zealously vanguard the special rights and protections afforded to young persons. By failing to properly inform N.B. of his rights, and to clarify that he did not have to answer questions about the incident, they simply poisoned any statement that was later provided.

Teenagers often act out with persons in authority. But as the Court reminds us here, the mere existence of bravado does not mean a young person is fully appreciative of the jeopardy he or she is facing. Crown counsel should be cautious about relying on evidence of such behaviour.

In cases where a young person is not formally arrested and the issue of psychological detention arises, the ruling on onus in these applications especially noteworthy. Defence counsel may not wish to pursue Charter applications (with a higher standard of proof) and simply rely upon evidence pointing to reasonable doubt that a young person was psychologically detained under s. 146. If the only evidence to be excluded is a statement, this would be a simpler route to achieve the same goal.