The Court allowed an Indigenous youth’s application for judicial interim release pending trial for first-degree murder. The Court accepted that the Gladue principles were relevant to his application for bail under the Youth Criminal Justice Act, SC 2002, c 1, particularly as they pertain to the secondary and tertiary grounds. The strength of the Crown’s case was not strong, the youth would be in pre-trial detention for a considerable length of time before trial, and a release plan with extensive conditions was proposed by defence counsel.
T.K. is a 16-year-old male who stands charged with first-degree murder in the death of D.D. contrary to s 235 of the Criminal Code. He attended a house party in Regina, Saskatchewan in which it is alleged he brought the suspected murder weapon, a machete. An altercation broke out, and when police were called the next day, D.D. was found dead in the house from severe lacerations to his skull, similar to what would be from a machete. T.K. is one of four young persons charged with first-degree murder in D.D.’s death. Two adults also face first-degree murder charges in respect of his death. Counsel for the Crown served notice that it will be seeking an adult sentence in the event T.K. is convicted of this alleged crime, in which he has elected to be tried by a judge and jury.
T.K. has applied for judicial interim release pending his trial pursuant to s 28 of the Youth Criminal Justice Act [“YCJA”]. He asks that he be allowed to reside with his mother at her home in Regina pending his trial on the murder charge. The YCJA commends judges to release young persons from detention pending trial, even in cases where the young person is charged with an extremely serious criminal offence for which the Crown will be seeking an adult sentence upon conviction.
T.K. is an Indigenous person of Cree descent. Consequently, Gladue factors are relevant and must be taken into consideration on this bail application (R v Gladue,  1 SCR 688 [“Gladue”]). T.K. had been in the care of the Ministry of Social Services from age 11 to 15. T.K.’s youth record is lengthy, commencing when he was only 14 years of age. At present, T.K. is detained at the Paul Dojack Youth Centre [PDYC], where he has Level 4 status. This status offers T.K. the greatest flexibility at that centre. T.K. is actively pursuing his Grade 10 education and is apparently doing well in his studies. He proposes to continue with his education if he is released. The Crown has not proved on a balance of probabilities that if released from PDYC, there is a “substantial likelihood” T.K. will commit a serious offence.
The Court analysed the strength of the Crown’s case against T.K. on first-degree murder. It is not strong. Apart from T.K. being present at the scene, there is no evidence currently which physically links T.K. to the commission of the offence or to its aftermath. If T.K.’s detention continues, he will be detained for a considerable length of time before he is tried on this offence. No preliminary inquiry has yet taken place, and none is scheduled until March or April 2021, at the earliest, approximately one year after the date of the offence. Once it is concluded, and if T.K. is committed to stand trial on this offence, it will be many more months before his trial would commence.
Taking all considerations into account and mindful that T.K. is a young person, his detention pending trial should be the very last resort and ordered only where no other alternative is available. The Court is satisfied that his application for judicial interim release should be granted and orders that T.K. be released from the PDYC with terms and conditions.