IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. S.S.V. is a 17-year-old youth seeking his release on bail.  The Crown seeks his detention.  There are three sets of charges.

[2]           It is alleged that on August 10, 2017 at approximately 6:00 p.m. a Honda Accord passed a police car on the right.  Both officers in the police vehicle recognized the accused as the driver and were aware that he was bound by a number of conditions, including not to be found in the driver’s seat of a motor vehicle.

[3]           Emergency equipment was activated in an attempt to conduct a traffic stop.  The vehicle pulled over and as the officers approached the vehicle on foot, the accused quickly accelerated, cut across a number of lanes and sped off.  The police did not pursue the vehicle for public safety reasons.

[4]           These officers were aware that the accused was bound by house arrest conditions and attended his residence.  The accused was not in his residence.

[5]           The charges arise from the August 10, 2017 incident above.  He is alleged to have been in breach of his bail terms by not abiding by his house arrest conditions on two occasions and for being in a motor vehicle without the registered owner being present.

[6]           It is alleged that on September 21, 2017, officers were patrolling an area when they saw an Acura.  The vehicle was being sought in relation to a fail to stop incident that took place the night before.

[7]           In an attempt to have the vehicle pulled over, the police officer activated their emergency equipment.  Rather than pulling over, the vehicle turned onto a sidewalk and drove up the sidewalk approximately fifty metres.  The Crown in their submissions pointed out that the area was heavily populated and it was approximately 3:30 in the afternoon.

[8]           The officer immediately recognized the accused as the driver of the vehicle.  This particular officer had interacted with the young accused many times.  He had also attended his residence to check on curfew compliance.

[9]           For public safety reasons, and the fact that the officer knew who the driver was, the police did not give chase.

[10]        Approximately seven hours later, the vehicle was seen again and was pulled over.  All the occupants were arrested for simple possession of marijuana pursuant to the Controlled Drugs and Substances Act, as on approaching the vehicle the officer smelled burnt marijuana emanating from the window of the vehicle.

[11]        Mr. S.S.V., while not the driver at this time, had a phone and $600.00 cash on his person.

[12]        The Crown seeks the detention of this youth.  They argue that he is charged with serious offences and that there is a pattern of behavior that shows there is a substantial likelihood if released that he would commit further offences.

[13]        Defence counsel argues that the accused is a youth and that there is a presumption against detaining a youth.  Further, it is argued that his record is very limited and the outstanding charges are simply allegations.  In short, counsel takes issue with the strength of the Crown’s case, relies on the presumption of innocence and has proposed a plan of release.  Specifically, it is argued that this youth is ‘releasable’ and, as such, we need not continue to the s. 31 stage of releasing him to a willing and able parent.

[14]        A cash bail of $5,000.00 is offered as part of a release plan.  The young accused would reside with his parents and thus would be able to continue attending his daytime programming.  It is strongly submitted and ably argued that this type of release is high up on the ladder of release and is considered the most onerous form of release.

[15]        A useful introductory summary of the YCJA is made available by the Department of Justice, wherein their published legal backgrounder states:

[16]        The Declaration of Principle is found in s. 3 of the Act.  I will not repeat them.  They are lengthy, well written and fully recognize the reduced level of maturity that young people have in comparison to adults.

[17]        While an Alberta authority and dealing with a different set of circumstances, I find Judge Jordan’s synopsis of the law in R. v. J.R., a Young Person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended as of February 3^rd 2007, 2013 ABPC 368, concerning the detention of youth succinct and helpful.  Dealing with the same issue, starting at paragraph 4, Judge Jordan summarizes the above sections and adds these additional comments:

[18]        R. v. Antic, 2017 SCC 27, is heavily relied upon by defence counsel.  That case instructs me at paragraph one that:

[19]        I am mindful that in paragraph 4 of the Antic decision the court makes it clear that:

[20]        Forms of release progress from an undertaking, to a recognizance with a monetary amount attached, to a surety bail in an amount, with or without conditions, finally to a cash bail.

[21]        Clearly Antic also recognizes that a cash deposit is one of the most onerous forms of release, and that either a cash deposit or monetary pledge, by way of a recognizance, gives an accused financial incentive to abide by conditions.

[22]        The issue in this case is the same issue that Judge Jordan faced in J.R.:  Whether the Crown has established on a balance of probabilities, that the detention of the accused is justified.

[23]        The accused is charged with a serious offence.  He is alleged to have operated a motor vehicle in a dangerous manner on two occasions, evaded police, obstructed police and breached conditions of his previous release.

[24]        I acknowledge that tertiary grounds were not argued.  Specifically, I have not been invited to make a finding as to whether it is necessary to detain him in order to maintain confidence in the administration of justice.  I do not make any such finding.  As such, I do not make any conclusions as to whether detention on this ground is necessary or not.  However, with respect to how serious dangerous driving and evading police officer charges are, I note that similar concerns were raised in R. v. T.E.L., 2003 BCPC 481,a decision of the Honourable Judge Dhillon.  In that case, Judge Dhillon detained a young person who was on bail for two thefts of motor vehicles, and while on bail, charged with a third stolen motor vehicle offence.  The young person was caught after a high speed chase.  In doing so, she said, “A right thinking member of the public would say that this young person is not being well-controlled by the criminal justice system and his release would cause them to lose confidence in the administration of justice.”

[25]        As for the dangerous driving offences, I acknowledge that these types of driving offences do not fall into a clear category of ‘offences of violence’.  Nevertheless, I consider dangerous driving offences to be extremely serious.  The Crown is proceeding by way of indictment, and as such, upon conviction, an adult would potentially be liable to a punishment of five years imprisonment.  This of course will probably not be his sentence.  However, the dangerous driving and evading police officer charges meet the criteria of serious offences as defined in s. 2 of the YCJA.  Specifically, they are indictable offences under an Act of Parliament for which the maximum punishment is imprisonment for five years or more.

[26]        Too often our courts see deaths as a result of the lesser related offences found under the ‘undue care and attention’ in the Motor Vehicle Act.  The dangerous driving offences that this youth is charged with his a criminal offence.  In R. v. Chisholm, 2009 BCPC 23 (CanLII), 2009 BCPC 0023, the Honourable Judge Woods succinctly commented on the dangers of driving inappropriately, wherein at paragraph 14 he wrote, “It is an inescapable truth that the potential to cause serious harm to persons or property, or worse, with a motor vehicle is very real.”

[27]        I find he is charged with serious offences.  Even though I make this finding, I must also consider his criminal history, which includes findings of guilt, and if there is a history that indicates a pattern of outstanding charges.

[28]        In November 2015, he body checked a security guard while his friend stole some items from a store.  These charges were outstanding until his finding of guilt in 2017.  He received probation for this charge.

[29]        As well, in November 2015, he failed to report to his youth supervisor.  He also pled guilty to this offence in early June 2017, after having done the equivalent of 12 days custody.

[30]        He does have other interactions with the justice system.  In June 2017, he was arrested for a number of firearm offences.

[31]        Most recently, approximately 8 months ago on January 27 and 30, 2017, he had a bail hearing.  It was alleged that he had been involved in an exchange of gunfire.  Specifically there were two vehicles reported to have been involved in a gunfight.  The vehicle that the accused was found in had weapons and a bullet hole in it.  His youth worker testified, and it is submitted to me that they did not support this young person’s release.  The accused’s father was offered as a s. 31 parent under the YCJA who was willing and able to supervise his son in the community.  As I understand the submissions, his father was working at the time and thus was not considered to be a person who was ‘able’ to adequately supervise his son.  In contrast, I am told now that his father is no longer required to be away from his residence for work purposes and thus is now ‘able’ and willing to act as a responsible adult if required to do so.

[32]        It is not the serious nature of these most recent 2017 allegations that I consider relevant.  To the contrary, a stay of proceedings has been entered with respect to these charges.  Thus, they are not even allegations.  They should not be relied upon in assessing whether this young person can be released.  I interrupted both counsel in their submissions to make my position clear on this point.  Both defence counsel and the Crown agree that the nature of the charges is not relevant in assessing whether he should receive bail today.

[33]        Does this young person have a history that indicates a pattern of outstanding charges?  While I do not think it appropriate to consider charges that have been stayed at the discretion of the Crown, I do find that examining his behaviour while on bail on these charges is relevant.

[34]        From January 30, 2017 to June 28, 2017 – approximately five months – he was in custody.  On June 28, 2017, there was a pre-trial conference held and new information had come to light that effected the strength of the Crown’s case.  He was released from custody.

[35]        On August 14, 2017, the charges that the youth was originally detained on were stayed.

[36]        So, when I examine the timeline, the accused was still bound by conditions of bail at the time of the August 2017 allegations.

[37]        Clearly, there is a history that indicates a pattern of outstanding charges.

[38]        Am I satisfied on the balance of probabilities that detention is necessary for the protection or safety of the public?  In examining this issue, I must take into account all the circumstances, including whether there is a substantial likelihood that if released, he will commit a serious offence.

[39]        His findings of guilt show that he has a pattern of behaviour that includes violence.  However, he was younger then.  He is not before the court on charges of violence, such as assault or robbery.

[40]        However, as noted above, I consider dangerous driving to be a serious offence.  In the past, he has been bound by probation orders and has a finding of guilt for breaching his terms he was bound by.  He is now alleged to be in breach of conditions of bail.

[41]        In a previous bail hearing, on matters that were stayed, the Honourable Judge Doherty created terms of release.  On October 18, 2016, Judge Doherty in his oral reasons, referring to previous release to his father, said:

[42]        There were nearly a dozen conditions imposed.  He had a 6:00 p.m. curfew, and not to be in a motor vehicle without the registered owner present.

[43]        On the topic of driving, I note that previously there is no condition forbidding him from driving.  Part of the reason for this is that he does not have a license that allows him to drive unconditionally.  He is designated as a learner.  To make the restriction clear, previous orders simply forbid him from being in the driver’s seat of a vehicle.

[44]        He was also bound by strict house arrest conditions.  The exceptions were clearly laid out.  For example, he could be out of his residence if he had written permission of his bail supervisor.  Yet, he is before the court for breaching these terms of his previous release as well.

[45]        By way of brief summary, he has a record for failing to abide by conditions and is before the court on a number of allegations for failing to abide by conditions.  On at least two separate occasions, he is seen by police officers.  He is alleged to not just be driving a car, but also to be driving it dangerously.  On both occasions, it is alleged he tried to evade the police.  The officers believed that members of the public would be put at risk if they continued to try and stop the vehicle.

[46]        He has been on probation, arrested for serious charges, placed into the custody of his father, who, for some reason, was not able to keep him out of cars or in the residence during curfew hours.  This young person even spent a significant amount of time in custody awaiting disposition of his more serious matters.  I would have hoped that time in custody might have scared him straight or acted as a mechanism of specific deterrence.  He had only been out of custody approximately four weeks before he was charged with these offences.  He has also had the benefit of clear direction from his parents, bail supervisor, probation officer and Judge Doherty.

[47]        I am satisfied, on the balance of probabilities, that detention is necessary for the protection or safety of the public.

[48]        In coming to this conclusion, I recognize that defence counsel questions the strength of the Crown’s case.  Strength of the Crown’s case is only one of the factors that I must consider.

[49]        He is charged with serious driving offences which include evading police officers.  If released, I find there is a substantial likelihood he would get behind the wheel of a vehicle.  If he did this, then the public safety would be at great risk.

[50]        To be clear, if he simply was not abiding by his curfew, I would not consider this act in itself to be sufficient to detain him.  There is little danger to the public or risk of being charged with serious offences when a 17-year-old simply stays out a few minute past his curfew.

[51]        Now that I have determined that the accused is ‘detainable’ on what in the adult system we refer to as secondary grounds, I must consider whether there is a plan of release that offers conditions that mitigate the risk to the public to an acceptable level.  Or in other words, to put the law above in positive terms, are there conditions that offer adequate protection to the public from the risk this youth presents if released?  Before I order that he be detained, I must be satisfied on the balance of probabilities that no other conditions would be adequate.  Once more, in keeping with the principles of the YCJA, this threshold is not very high.  If there is doubt as to the adequacy of conditions, I believe I should weigh that doubt in favour of the accused and impose the release plan suggested.  The plan need not be perfect.  But it must offer adequate protection to the public.

[52]        What is the plan?  $5,000.00 cash, his father as a s. 31 responsible adult, or even a $20,000.00 no cash deposit surety have all been suggested as possible.

[53]        Section 31 of the YCJA provides that a young person can be placed in the care of a responsible person instead of being detained in custody.  First, I must be satisfied that the young person would be detained.  Second, the person must be willing and able to exercise control over the young person.  Third, the young person must be willing to be placed with that person.

[54]        The accused is willing to be placed with his father.  His father is willing to be responsible for his son.  The only issue is whether his father can exercise control over his son.  While previously, the father’s work took him out of the house, and there was an issue regarding his ability to be physically present to exercise control over his son, this is no longer the case.  He has the ability to be present.

[55]        In further considering his ability, I note these points.  His son has been living at his home since his son’s first offence before the court.  His mother also lives at the residence.  It has been reported to the bail supervisor that his mother tried to stop the accused from taking their family vehicle without her permission.  Yet the accused did not listen to her and openly disobeyed her wishes.  The vehicle was also taken without the permission of his father.  The bail supervisor has raised concerns as to the parents being able to control their son.  Once more, the pattern of charges raises some doubt as to the ability of either parent to control the accused.  For example, on at least two occasions as indicated by the allegations, this youth was not inside his residence when he was supposed to be.  He was on a s. 31 release to his father at that time.

[56]        R. v. D. (R.) (2010), 2010 ONCA 899 (CanLII), 273 C.C.C. (3d) 7 (Ont. C.A.) makes it clear to me that s. 31 of the YCJA contemplates a closer level of supervision than is expected of a surety and imposes a duty to take care of the young person through a written undertaking reinforced by penal consequences.

[57]        I certainly respect this young person’s father for coming forward to support his son.  However, for reasons outlined above, I am not satisfied that he is able to exercise adequate control over his son’s behaviour.

[58]        I appreciate defence counsel’s submission that this young person has not previously had the benefit of a cash bail release.  I also acknowledge that the accused’s father agreed that he could put up a $20,000.00 surety if required.  But I disagree that the young person has a right to the most onerous bail, before being detained.  Contrary to submissions of counsel, I do not find that Antic stands for the proposition that once the lower form of bail is no longer appropriate, then we can almost automatically move up the ladder of release to a more onerous form.

[59]        In fact, at paragraphs 48 and 49 of Antic, the court makes it clear that:

[60]        In this case, cash is offered, however his father is able to provide the same amount or even higher by way of surety.  Will a cash bail, surety bail, or supervision by his parents ensure that he is compliant with his bail terms?  I am not satisfied by any threshold that this young person will comply with any of his bail terms.  It is possible that a cash bail deposited by his father or a higher surety bail for $20,000.00 might create an incentive for his family to report breaches of his bail.  But the accused would still potentially be out in public, behind the wheel of a vehicle, putting members of the public at risk in an unacceptable manner.

[61]        I am satisfied that his detention is necessary for the protection and safety of the public and I detain him in custody on all matters.