E.J. GUNN NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.E.S., 2009 NSCA 91 Date: 20090911 Docket: CAC 315311 Registry: Halifax v. Her Majesty The Queen Respondent Restriction on publication: Pursuant to s. 110(1) and s. 111(1) of the Youth Criminal Justice Act. Judge: The Honourable Justice Elizabeth Roscoe Application Heard: September 3, 2009, in Chambers Held: Application for release pending appeal is dismissed Counsel: Chandra Gosine, for the appellant Peter Rosinski, for the respondent Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110(1) and s. 111(1) of the YOUTH CRIMINAL JUSTICE ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. (1) Subject to this section, no person shall publish the name of young person, or any other information related to young person, if it would identify the young person as young person dealt with under this Act. (1) Subject to this section, no person shall publish the name of child or young person, or any other information related to child or young person, if it would identify the child or young person as having been victim of, or as having appeared as witness in connection with, an offence committed or alleged to have been committed by young person. Decision: [1] J.E.S., aged 16, pleaded guilty to aggravated assault contrary to s. 268(1) of the Criminal Code. On July 15, 2009 he was sentenced by Youth Court Judge Jamie S. Campbell to serve total sentence of 365 days, comprised of 243 days custody followed by 122 days supervision in the community. Nine month’s credit was given for the six months he spent on remand, so the total sentence is, in effect, 21 months, four months of which is non-custodial. J.E.S. has appealed his sentence and applies for release pending appeal pursuant to s. 679 of the Criminal Code. The appeal has been scheduled to be heard on November 13, 2009. [2] Judge Campbell described the offence in the sentencing decision as follows: The crime here was of potentially lethal violence. The circumstances surrounding it are, to say the least, perplexing. It was not moment of poor judgement. It was not momentary lapse of self control. J.E.S. took gun in anticipation of fight. Apparently he made what he thought was pre-emptive strike, though it seems against young man he didn’t even know. [3] The victim of the crime was young person standing on street corner who was shot in the back with rifle fired by J.E.S. in drive-by shooting. [4] J.E.S. has appealed his sentence but not the conviction. The grounds of appeal are: 1. The learned Trial Judge emphasised the element of general deterrence when prohibited from doing so under the Y.C.J.A. 2. The learned Trial Judge imposed sentence which is clearly unfit under the principles of sentence under the Y.C.J.A., the preamble and the declaration of principles. [5] The relevant sections of the Criminal Code provide: 679 (1) judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, ... (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal ... (4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by judge of the court of appeal if the appellant establishes that (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [6] Further to s. 679(1)(b), and Civil Procedure Rule 91.24(1), it is necessary that leave to appeal be granted before release pending appeal. To grant leave, should be satisfied that the grounds are not frivolous and that they raise arguable issues: R. v. MacIntyre, 2003 NSCA 68 (CanLII), R. v. Smith, 2005 NSCA 45 (CanLII). The Crown does not oppose the leave application and am satisfied that the grounds of appeal are not frivolous, and therefore grant leave to appeal. [7] At the hearing of the bail application, counsel for the appellant called Mr. Mark Crosby of the Youth Probation Office as witness. Mr. Crosby testified that if J.E.S. is released pending appeal he would be accepted into the Youth Bail Supervision Program. That program provides for intensive supervision including weekly reporting in person, daily telephone contact, curfew checks, random home and school visits, and the use of an electronic GPS bracelet which continually tracks the location of the young person. J.E.S. and his mother have agreed to his participation in this program if he is released pending appeal. [8] Counsel for the appellant submitted that since the appellant is young person, s. 679 of the Criminal Code should be interpreted in accordance with the principles set out the Youth Criminal Justice Act. No authority, specific to release pending appeal, was cited by counsel to support this argument. One case found subsequent to the hearing, R. v. D. C., 2005 ABCA 280 (CanLII), does assist the appellant’s position. In that case, Berger, J.A. released the young person pending sentence appeal, after finding that strict conditions of release would “in all of the circumstances, best achieve the objects and purposes of the Youth Criminal Justice Act pending the Applicant’s appeal.” [See 8.] In that case, the young person had served all but seven weeks of six-month custodial sentence at the time of the application for release pending appeal. [9] will therefore be informed and guided by the principles as set out in s. of the Y.C.J.A. in determining whether the appellant should be released pending appeal. Those principles are stated as follows: (1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (i) prevent crime by addressing the circumstances underlying young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that young person is subject to meaningful consequences for his or her offence in order to promote the long‑term protection of the public; (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [10] Most of these principles are more relevant at the pre-trial, trial and sentencing stages of proceeding than at this time. The appellant, J.E.S., has the onus of establishing each of the three conditions of s. 679(4) on balance of probabilities. In my view, none of the principles of the Y.C.J.A. dictate that the burden should be lessened or shifted to the Crown. The principles relevant to this matter require that deal with his application and set down the appeal as soon as possible, take into account the appellant’s reduced level of maturity, and ensure that he is treated fairly. [11] At this stage of the proceeding, the appellant no longer has the benefit of the presumption of innocence. The Crown is opposed to the release of the appellant, and submits that the appellant has not established any of the three conditions. [12] The “unnecessary hardship” condition was explained by Saunders J.A., in R. v. Bennett, 2006 NSCA 86 (CanLII): [16] In R. v. J.D., (1996) N.S.J. No. 176, Flinn, J.A. for this court discussed the threshold for establishing under s. 679(4)(a) whether an appeal is sufficiently meritorious that failure to allow bail pending appeal would cause unnecessary hardship. He quoted from The Law of Bail in Canada, (Gary T. Trotter, Toronto: Carswell, 1992), and agreed that the onus on an appellant under s. 679(4)(a) of the Criminal Code is “much more stringent” than for an appeal against conviction. He also implicitly accepted the following statement from that text at ¶23: The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he or she will have already served the sentence as imposed, or what would have been fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than that which is subsequently determined to be appropriate in the sense, there is unavoidable speculative dimension of this criterion. [13] J.E.S. says in his affidavit that he will suffer unnecessary hardship if kept in custody until his appeal is heard because he will fall behind in his schoolwork and be unable to complete his high school education in a timely fashion. Prior to being remanded, J.E.S. was not attending school because he had been asked to leave the high school he had previously attended as a result of concern for his and other students’ safety after threats had been made against him. While in custody at the Nova Scotia Youth Centre in Waterville, J.E.S. has been studying grade 10 Math and English and, according to his pre-sentence report, he also attends substance abuse and anger management programs. [14] The second condition that J.E.S. must meet is he would surrender himself in accordance with any release order. review of his record indicates that he has history of flaunting court orders. On the day that he committed the drive-by shooting in this case, he was on two probation orders that prohibited him from possessing firearms and was also subject to firearms prohibition order. As well, he was on an undertaking to keep the peace and be of good behaviour. He has been convicted of five breaches of probation, two breaches of undertaking, and two resisting arrest/obstruction charges. Furthermore, he has prior record for violent offences. [15] J.E.S. must also prove that his detention is not necessary in the public interest. This condition was described by Justice Bateman recently in R. v. Marshall, 2008 NSCA 41 (CanLII): 24 In R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), Culliton, C.J.S., in discussing the meaning of "detention in the public interest", said at p. 326: am convinced that the effective enforcement and administration of the criminal law can only be achieved if the Courts, Judges and police officers, and law enforcement agencies have and maintain the confidence and respect of the public. Any action by the Courts, Judges, police officers, or law enforcement agencies which may detrimentally affect that public confidence and respect would be contrary to the public interest.... (Cited with approval by Arbour J.A. in R. v. Farinacci, 1993 CanLII 3385 (ON CA), [1993] O.J. No. 2627 (Q.L.), 86 C.C.C. (3d) 32 (C.A.)). [16] The appellant J.E.S, has clearly not met all three requirements for release pending his sentence appeal. He is able to attend high school classes in the youth facility while he awaits his appeal, so he is making some progress towards his education. Although the number of subjects available is limited, he is receiving individualized attention several times week. Furthermore, even if his sentence appeal is successful, by the time the appeal is heard on November 13th, he will have only served about four months custody since the date of sentencing by the Youth Court. The appellant has not satisfied the onus which is upon him to establish that his appeal has sufficient merit that, in the circumstances, would cause unnecessary hardship if he were detained in custody until November. In coming to this conclusion have considered the serious nature of the offence here, the principles of the Y.C.J.A. listed above, the appellant’s criminal record, the reasons for sentence given by Judge Campbell, and the general reluctance of this Court to interfere with youth sentences unless it is clearly excessive or based on wrong principles. The appellant has not satisfied me that his appeal is sufficiently meritorious that, by the time his appeal is heard, he will likely already have served more than what is determined to be a fit sentence, and thereby suffer undue hardship if he is not released. [17] With respect to the second condition, in light of his pattern of flagrant disregard of court orders, am very concerned that the appellant would not abide by the conditions of any release order or surrender himself as required. However, the program described by Mr. Crosby certainly appears to provide much closer supervision than J.E.S. has had in the past, and J.E.S. professes to have “turned new leaf” regarding his former negative peer group. am therefore prepared to accept that the second condition has been met. [18] However, given the circumstances of the aggravated assault offence, his record of violent offences, and the numerous breaches of court orders, I am not persuaded that his release would be in the public interest. The appellant’s release so soon after being sentenced, in order for him to attend school in the community, would tend to undermine public confidence in the administration of justice. [19] The application for release pending appeal is therefore dismissed. Roscoe, J.A.
The young person appealed his sentence on an aggravated assault conviction following a drive-by shooting and applied for release pending appeal. Although he alleged that he would suffer unnecessary hardship if kept in custody because he would fall behind in his schoolwork, prior to being remanded the youth had been asked to leave his high school as a result of safety concerns in the school. Application for release pending appeal dismissed. The young person would not suffer unnecessary hardship as he was able to attend high school classes several times per week in the youth facility while he awaited his appeal and, even if his appeal was successful, he would only have served four months custody before it was heard. Given the circumstances of the aggravated assault and his record of violent offences and numerous breaches of court orders, the court was not persuaded that the youth's release would be in the public interest.