Two more girls charged in a swarming attack of a homeless man in downtown pc28have been released on bail following highly unusual, marathon hearings that went into the night on Wednesday.
Ontario Court Judge Maria Sirivar ordered the two girls released after hearing their lawyers’ application to review her earlier decision to keep them in custody.
On Tuesday morning, after court heard the girls weren’t going to be brought to a sixth-floor courtroom from custody as ordered, the teens’ defence lawyers discussed their concerns before the scheduled hearings began.
Both Kevin Gray of Leo Adler Law and Nadia Chaabane said their clients had faced “unacceptable” conditions after they were flown suddenly by the province to Kenora, Ont., via charter flight earlier this month; Sirivar said she shared the lawyers’ concerns.
On Wednesday, the judge arranged for the bail-review hearings to continue well past closing hours after it was deemed scheduling issues at the new courthouse meant they could not continue Thursday. The second girl, 13, was released on bail shortly after 10 p.m.
In December, eight teenage girls aged 13 to 16 were arrested and charged with second-degree murder in the death of Kenneth Lee in what police called a “swarming” attack near Union Station. Five other girls have already been released on house arrest. One remains in custody.
While bail is an increasingly controversial topic outside court, the actual evidence presented in Wednesday’s hearings falls under a sweeping publication ban intended to protect an accused person’s right to a fair trial. Although a reporter was present in the courtroom for nearly 15 hours, the facts and arguments that informed Sirivar’s decision can’t be published until after the case ends.
The young people also cannot be identified under the Youth Criminal Justice Act, which aims to protect their ability to be rehabilitated, separate from the adult justice system.
All eight girls have had bail hearings in front of Sirivar, a family and youth court judge appointed in 2018.
Ken Lee, 59, the victim in the swarming case.
pc28Police ServiceThe case is unprecedented in Ontario’s recent history. Young girls are rarely charged with violent offences; no girls as young as 13 have been charged with homicide since at least 2011, according to provincial records.
On Tuesday, lawyers for the girls and Crown attorney Sarah De Filippis spoke to the judge before the hearings, which began later in the afternoon, because the girls had not been brought to court. When the Star asked Sirivar in court for clarification about the morning’s proceedings, she said in her opinion the bail review hearings had not yet begun.
That morning, the court heard that the girls had been transferred on an “emergency” basis to a Northern Ontario facility after the sprinkler system at the Brampton facility where they were being housed had caused flooding.
“I’m told that they will not be here,” De Filippis told the court. The prosecutor explained that the Ministry of Children, Community and Social Services, which is responsible for youth custody and detention in Ontario, “does not intend to bring them to court.”
De Filippis advised that the ministry said the girls would be brought instead to a secure facility in London, Ont.
Earlier this year, Sirivar ordered both girls to be moved to open facilities — “generally smaller residences located in the community where youth can have access to staff-supervised programming in the community,” according to a ministry website. Sirivar’s reasons for this order are subject to a publication ban. Closed facilities have higher security measures.
Hearing the ministry’s plan, the judge said Tuesday she was “extremely concerned.”
“These young people ought to have been brought to court. Period. Full stop.”
Chaabane, the lawyer for one of the girls, also questioned why a roughly two-hour flight from Kenora to the GTA would cause such a delay.
“I don’t know what else to say other than we are alarmed, we’re concerned and we’re going to wait here,” she said.
Gray, the other girl’s lawyer, said the decision to transfer the girls to a secure facility violated a court order and could be seen as contempt of court.
Sirivar said she wanted senior ministry officials to speak to who authorized the girls’ transfers. She added: “I’m concerned about the risk of emotional harm.”
Following a break, the bail-review hearings began Tuesday afternoon after their lawyers consented to start without the girls present. What was discussed is subject to a publication ban.
The girls finally arrived in court just before 12:30 p.m. Wednesday.
After a day of hearing evidence, Sirivar ordered the first girl released around 6 p.m. She will stay with people who agreed to act as responsible persons under the Youth Criminal Justice Act and will not be allowed to leave the house without one of them. She also cannot have a cellphone or use social media and is subject to standard conditions, such as not possessing any weapons.
The role of a responsible person brings a higher burden than being a surety, carrying the risk of prison time if the girl breaches her bail conditions.
The hearing for the second 13-year-old girl — one of the youngest accused — continued into the evening before she too was released under similar conditions.
As the hearings ended, Sirivar addressed the staff in the room and the building, saying she believed she’d never been in a courtroom that late.
“This courthouse has had a lot of challenges with respect to having to close courts and staffing issues,” she said. “Much has been said about that by a variety of folks. Notwithstanding those challenges, it’s 9:30 at night and there are people in this building that you don’t see that have to be here in order for us to finish.”
She thanked that “army” of people who she said understood “what was at stake” before signing paperwork for the release.
All eight girls are next expected in court on May 10 as lawyers continue to discuss pretrial issues.
