WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court: Court of Appeal for Ontario

Date: 2019-11-21

Docket: C63917

Panel: Hourigan, Brown and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Samuel Essel Appellant

Counsel

For the Appellant: Marianne Salih

For the Respondent: Philippe G. Cowle

Hearing

Heard: September 19, 2019

On appeal from: The conviction entered on July 8, 2016 and the sentence imposed on April 20, 2017 by Justice Stephen Bale of the Superior Court of Justice, sitting with a jury.

Decision

BROWN J.A.:

PART I: OVERVIEW

[1] Following a trial before a judge and jury, the appellant was convicted of sexual assault, sexual interference, and uttering threats to cause death. His conviction for sexual assault was stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to three years' incarceration.

[2] The appellant appeals his conviction and seeks leave to appeal his sentence.

[3] At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.

PART II: CONVICTION APPEAL

THE APPEAL

[4] At the time of the sexual offences, the appellant was 26 years old and the complainant was 14 years of age. The complainant alleged that the appellant had sexual intercourse with her at her home while her parents were away and, on another occasion, kissed her in her bedroom for about five minutes. The complainant testified that she and the appellant were dating when he committed the offences.

[5] The appellant testified at trial and denied the allegations.

[6] The jury convicted the appellant.

[7] The appellant's single ground of appeal from conviction concerns the sequence in which the trial judge disposed of two of the applications he brought at trial: (i) a constitutional challenge to s. 119(4) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"), which limits access to records concerning extrajudicial measures taken in respect of a young person; and (ii) a third party records application pursuant to s. 278.3 of the Criminal Code.

[8] The appellant submits that the trial judge erred by failing to first dispose of his constitutional challenge. Instead, the trial judge wrongly first dealt with and dismissed his s. 278.3 third party records application and then treated his constitutional application as moot: 2016 ONSC 3825. The appellant's argument centres on the manner in which the trial judge dealt with his request for disclosure of a record of extrajudicial measures ("EJM") kept by the Durham Regional Police Service (the "Durham Police") pursuant to s. 115(1.1) of the YCJA.

[9] Some background is required to put this ground of appeal in context.

THE EARLY STAGES OF THE APPELLANT'S s. 278.3 APPLICATION

[10] The appellant was charged in January 2013 and, following a preliminary inquiry, committed in March 2014 to stand trial. The appellant's trial originally was scheduled to commence in June 2015.

[11] As part of his defence, the appellant intended to challenge the complainant's credibility on the basis that, on an earlier occasion, she had falsely accused a fellow student, whom I will call "X", of sexual assault.

[12] At an April 2015 appearance in the Superior Court of Justice, defence counsel advised that the appellant intended to make a s. 278.3 third party records application and undertook to serve subpoenas on three third parties: the Durham Police; the school board in which the complainant was a student; and the local Children's Aid Society. Although copies of the subpoenas were not in the appeal record, it appears they used language that sought documents and records relating to an investigation involving the complainant and allegations of inappropriate sexual activity with X.

[13] On a June 8, 2015 attendance, counsel for the Durham Police informed the court of the results of its searches made in response to the subpoena. The Durham Police filed with the court in a sealed envelope certain records and advised that it also possessed a record kept pursuant to the YCJA.

[14] The Crown advised that it did not have possession of the YCJA record nor had it been asked by the defence to inquire about the existence of any youth record.

[15] The defence indicated it would apply to the Youth Court for production of the youth record, and the trial date was adjourned.

APPLICATION BEFORE THE YOUTH COURT

[16] On October 23, 2015, Felix J. of the Ontario Court of Justice, sitting as a Youth Court judge, heard the appellant's application. The police had advised that they possessed a record maintained under s. 115(1.1) of the YCJA and the matter had been resolved by way of extrajudicial measures. Section 115(1.1) of the YCJA states: "The police force shall keep a record of any extrajudicial measures that they use to deal with young persons."

[17] Section 2(1) of the YCJA defines "extrajudicial measures" as "measures other than judicial proceedings under [the YCJA] used to deal with a young person alleged to have committed an offence and includes extrajudicial sanctions." Brock Jones, Emma Rhodes, and Mary Birdsell, in Prosecuting and Defending Youth Criminal Justice Cases, 2nd ed (Toronto: Emond Montgomery Publications, 2019), at p. 135, describe the wide variety of EJM options available for police and prosecutors, including: making a simple decision to take no further action; giving the young person a warning; giving a more formal police or Crown caution to the young person; referring the young person to community resources or agencies; and, on a post-charge basis, allowing the young person to complete extrajudicial sanctions.

[18] By the time of the application to the Youth Court, defence counsel had spoken to X and understood that X had never been charged in respect of a matter involving the complainant.

[19] The Crown and the Durham Police took the position that s. 119(4) of the YCJA prevented disclosure of the EJM record to the appellant. Section 119(4) of the YCJA states:

119(4) Access to a record kept under section 115 or 116 in respect of extrajudicial measures, other than extrajudicial sanctions, used in respect of a young person shall be given only to the following persons for the following purposes:

(a) a peace officer or the Attorney General, in order to make a decision whether to again use extrajudicial measures in respect of the young person;

(b) a person participating in a conference, in order to decide on the appropriate extrajudicial measure;

(c) a peace officer, the Attorney General or a person participating in a conference, if access is required for the administration of the case to which the record relates; and

(d) a peace officer for the purpose of investigating an offence.

[20] The Youth Court judge dismissed the appellant's application, holding that he lacked the jurisdiction to order police to provide the record to the court and could not interpret s. 119(4) in a manner that would require production of the requested record.

THE CONTINUATION OF THE s. 278.3 APPLICATION

[21] The appellant's trial was re-scheduled to commence in June 2016.

[22] In April 2016, the trial judge dealt with three pre-trial applications brought by the appellant: the application under s. 278.3 of the Criminal Code initiated the previous year and a related s. 276 application, as well as a new application advancing a constitutional challenge to s. 119(4) of the YCJA. In that application, the appellant contended that the limits placed on the production of EJM records by YCJA s. 119(4) were unconstitutional because they infringed his rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The appellant sought a declaration that s. 119(4) of the YCJA was of no force and effect.

[23] The appellant requested that the trial judge first dispose of his constitutional application before dealing with the third party records application because he had not been successful in obtaining the EJM record from the Youth Court. The appellant took the position that he did not know what was in the EJM record. But, if it turned out to contain information about a prior false allegation by the complainant, that would provide the appellant with a better evidentiary foundation for his s. 278.3 application. Defence counsel wanted to marshal the best evidence in advance of arguing the s. 278.3 application.

[24] The applications were heard over three days. The trial judge first heard argument on the appellant's constitutional application. For the first day and one-half, the appellant made his submissions based on the assumption that the EJM record in the hands of the police possibly involved a disposition using extrajudicial measures against the complainant for some discreditable conduct on her part, such as making a false allegation.

[25] Only towards the end of the second day of the hearing did the issue arise as to whom the EJM record related. The complainant's counsel thereupon made inquiries of the Durham Police pursuant to YCJA s. 124, which states: "A young person to whom a record relates and his or her counsel may have access to the record at any time." Complainant's counsel informed the court that the Durham Police advised there were no records concerning extrajudicial measures used against the complainant. The record identified by the Durham Police in response to the appellant's subpoena was in respect to someone other than the complainant but contained a reference to her.

[26] Durham Police provided no information regarding whom the record concerned. Proceeding on the assumption that the record concerned extrajudicial measures used to deal with X, appellant's counsel acknowledged that he had not properly served X with his s. 278.3 application. In the result, that lack of service did not matter. The trial judge heard the appellant's third party records submissions on the assumption that the EJM record was a record dealing with X, not the complainant, and the trial judge determined the issue notwithstanding the lack of proper service on X: at para. 11.

THE TRIAL JUDGE'S REASONS

[27] The trial judge disposed of both applications in one set of reasons. He described the theory of the defence regarding the relevance of the EJM record as follows, at para. 21:

The defence theory with respect to the relevance of the records sought is as follows:

• that there is evidence of some sort of sexual activity between the complainant and a male youth;

• that that sexual activity came to the attention of school authorities, the children's aid society and the police;

• that because of the strict religious convictions of the complainant's family, she had a motive to deny that the sexual activity was consensual, when in fact it was;

• that no charges were laid against the male youth;

• that the failure of the police to lay charges against the male youth may have been because the complainant recanted, or because her denial that the sexual activity was consensual had been shown to be demonstrably false; and

• that therefore, the records sought are likely relevant, and their production is necessary in the interests of justice, and to allow the accused to make full answer and defence.

[28] The trial judge then began to apply the first stage of the regime in R. v. Mills, [1999] 3 S.C.R. 668, governing the production of records pursuant to Criminal Code ss. 278.3 to 278.91. He summarized, at paras. 22 to 27, the evidence that was before the court on both applications:

In order to satisfy the "likely relevant" test, the accused must persuade the court that there is an evidentiary foundation demonstrating a reasonable possibility that the document will contain relevant information.

The sources of evidence referred to by counsel on the hearing of the third party records application in this case are:

• excerpts from the transcript of the evidence given at the preliminary inquiry, by the complainant and her parents;

• the affidavit of Marcia Collins sworn May 28, 2015, filed in support of the application; and

• the affidavit of Marcia Collins sworn September 24, 2015, filed in support of the accused's application in youth justice court.

The evidence given at the preliminary inquiry amounts to:

• that the complainant had a strict upbringing and that "premarital anything sexual" was not something that she should be involved in;

• that "something with a boy" had happened in the past, but she did not get in trouble because it was not something that she wanted to do; and

• that her father spoke to the school and the police about "some little, uh, thing, something that happened in the school" which was "not that serious".

Marcia Collins is a secretary working in defence counsel's office. In her affidavit sworn May 28, 2015:

• she swears that she was advised (by whom, she does not say, but presumably by Mr. Rippell [trial counsel for the appellant]) that the young man who was the subject of the "something with a boy" referred to in the preliminary transcript was never charged in relation to the "something";

• she swears that she understands (the basis of her understanding is not stated) that the accused was aware of the name of the young man;

• she says that she was advised (again, by whom, she does not say) that the accused had spoken to an unnamed friend of the unnamed young man;

• she says that she was advised (again by whom, she does not say) that the young man was accused of forcing the complainant "to perform oral sex on him"; and

• she states as a fact that "the accused party has always maintained that [the complainant's] allegations were untrue" (presumably based upon information given by the "young man" to the friend of the young man, who gave it to the accused, who gave it to Mr. Rippell, who gave it to her).

In the affidavit of Marcia Collins sworn September 24, 2015, she swears that Mr. Rippell advised her:

• that he had spoken to the young man "who was accused by [the complainant] of sexual impropriety on a previous occasion";

• that the young man had told Mr. Rippell that the Durham Regional Police had spoken to him, and to his father, and that the young man was never charged; and

• that the young man had told Mr. Rippell that the allegations against him were false.

In the absence of any explanation as to why the evidence contained in the Collins affidavits could not have been given by "the young man", it is inadmissible hearsay. However, even if it were to be accepted as evidence on this application, and putting it at its highest, it says no more than that the male youth denied either that the incident had occurred, or that the sexual activity had been non-consensual – a wholly unremarkable response.

[29] In his reasons, the trial judge first dealt with and dismissed the third party records application, holding that the appellant had not satisfied the first stage of the Mills regime test – that is, the appellant had not established the records sought were likely relevant to an issue at trial. He wrote, at para. 32:

The evidence is that "something with a boy" had happened in the past, "some little, uh, thing, something that happened in the school" which was "not that serious". There are any number of reasons why charges might not be laid in such circumstances. The police may simply have been unsure as to what actually took place, or may have concluded that what did take place was not particularly serious. And, under sections 4, 5 and 6 of the YCJA, a police officer is required to consider whether it would be sufficient to take no further action, warn the young person, administer a caution, or with the consent of the young person, refer him to a program or agency in the community that may assist him not to commit offences. The suggestion that the reason why no charges were laid against the male youth was that the complainant recanted amounts to nothing more than unfounded speculation.

[30] The trial judge then considered and dismissed the constitutional application, holding, in part, that the application was moot in light of his dismissal of the third party records application: at paras. 38-46.

[31] On appeal, the appellant does not challenge the trial judge's first stage Mills analysis, except to the extent that the analysis could have proceeded differently following a successful constitutional challenge to YCJA s. 119(4).

REVISITING THE ISSUE DURING THE TRIAL

[32] The defence returned to the issue of the EJM record twice during trial.

[33] First, during her cross-examination, the complainant testified that her contact with the police in relation to the appellant was the first time she had ever talked to a police officer. The defence sought to impeach the complainant using the earlier matter involving X because, according to the complainant's preliminary inquiry testimony, she appeared to have had some contact with the police at that time. In the ensuing argument about the permissible scope of the impeachment given the trial judge's prior rulings about the EJM record, defence counsel repeated the arguments made on the constitutional application, but now in support of the position that questioning the complainant on her contact with the police in relation to the X matter would not violate Criminal Code s. 276, which limits the scope of questioning on a complainant's prior sexual history.

[34] Defence counsel also informed the court that he was in contact with X's father, had left a subpoena for X at his residence, and could get an affidavit from X's father.

[35] The trial judge ruled that the defence could attempt to impeach the complainant on certain evidence she gave at the preliminary inquiry but he could not ask her to describe the incident concerning X.

[36] The second occasion occurred when the defence cross-examined the complainant about how the intercourse she alleged the appellant had initiated came to an end. The complainant testified that the appellant had ejaculated. She went on to state that she had never had sex before and did not know the signs of ejaculation. That prompted defence counsel to advise he intended to bring a s. 276 application on the basis that information he had about the event with X indicated it involved ejaculation. The defence did not proffer any new evidence that was not before the court at the time of the April applications, but offered to seek an affidavit from X.

[37] The trial judge denied the defence's request to bring a s. 276 application, stating that it was "no more than a fishing expedition" and, therefore, the renewed request for a constitutional exemption to look at the EJM record was moot.

ISSUE ON APPEAL

[38] On appeal, the appellant does not challenge the trial judge's analysis on the first stage of the third party records application under the Mills regime. Instead, the appellant submits that the trial judge erred by first dealing with his s. 278.3 application and then dismissing his constitutional application as moot.

[39] The appellant argues that had the trial judge first dealt with his constitutional application, the evidence showed that the record contained information potentially relevant to the Crown's prosecution of the appellant. As a result, the Crown was under a duty to obtain information about the relevance of the EJM record from the police for its consideration and disclosure to the appellant. Since YCJA s. 119(4) prevented the Crown from doing so, it violated the appellant's s. 7 and s. 11(d) Charter rights and was unconstitutional.

ANALYSIS

[40] Given the state of the record that was before the trial judge, I am not persuaded that the trial judge's analysis was tainted by reversible error. At the heart of the appellant's argument lies the assertion that the sequence in which the trial judge determined the constitutional challenge to YCJA s. 119(4) and the Criminal Code s. 278.3 application improperly relieved the Crown of a legal obligation it otherwise bore to disclose or inquire into information. Neither the jurisprudence nor the evidence before the trial judge supports that assertion.

The Crown's duty to disclose

[41] Under R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Crown is obliged to disclose to the accused the fruits of the investigation, namely all relevant information in its possession relating to the investigation against an accused: at pp. 345-46; see also R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 22. Relevant information for this purpose includes any information in respect of which there is a reasonable possibility that it may assist the accused: McNeil, at paras. 17 and 44.

[42] In the present case, the Crown did not possess the EJM record identified by the Durham Police in response to the appellant's subpoena.

[43] Further, the appellant's argument before the trial judge proceeded on the basis that the EJM record was a "record" within the meaning of Criminal Code s. 278.1, in that it contained personal information for which there was a reasonable expectation of privacy. Given that the charges against the appellant were sexual offences listed in s. 278.2(1)(a), even if the EJM record was in the Crown's possession or control, s. 278.2(3) would limit the Crown's obligation to one of notice, not disclosure: "In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents"; see also McNeil, at para. 21.

[44] Although the police also have a corollary duty to disclose to the Crown the fruits of the investigation, in this case it was not suggested that the EJM record was part of the material pertaining to the police investigation of the appellant: McNeil, paras. 14 and 24. [1]

The Crown's duty to inquire

[45] The appellant submits that even if the Crown was not under a duty to disclose the EJM record, it owed a duty to inquire into and disclose information about that record.

[46] In McNeil, at para. 49, the Supreme Court of Canada adopted as an apt description of the Crown's obligation to make reasonable inquiries about evidence the following passage from the decision of Ryan J.A. in R. v. Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.), where he stated, at para. 15:

When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency's file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused. This also applies to cases where the accused or defendant, as the case may be, is unrepresented[.] [Emphasis added.]

[47] The Supreme Court went on to state that "[t]he same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case": McNeil, at para. 50.

[48] In the present case, knowledge about the existence of a document was not the issue. The defence came to know about the existence of an EJM record as a result of the subpoena it served on the Durham Police as part of its application under s. 278.3. However, the appellant argues that the Crown's duty to inquire goes further than ascertaining the mere existence of a document. He points to the decision of the Supreme Court of Canada in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, where the court observed that the Mills regime does not displace the Crown's duty to inquire and assess potentially relevant material, stating, at para. 18:

The Crown's McNeil duty to make reasonable inquiries and the corresponding police duty to supply relevant information and evidence to the Crown apply notwithstanding the Mills regime. The Mills regime governs the disclosure of "records" in sexual offence trials, but does not displace the Crown's duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil. As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences. The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence: Criminal Code, s. 278.2(3). [Emphasis in original.]

[49] The court stated that although s. 278.2(3) prevents the Crown from disclosing a s. 278.1 "record" in its possession to the accused, "it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance" and whether "it intends to use any information contained in the records protected by Mills as part of its case against an accused": at para. 16. As well, "[t]he Crown's assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court": at para. 16. This court stated in York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, 144 O.R. (3d) 81, at para. 90, that the Crown owes this duty unless the notice it receives about material or information "appears unfounded".

[50] The appellant submits that YCJA s. 119(4) prevents the Crown from discharging that aspect of its duty to inquire and assess potentially relevant material. As a result, the trial judge should have first dealt with the constitutionality of the limit imposed by statute on the Crown's duty to inquire and assess.

[51] I am not persuaded that, in the circumstances of this case, the operation of YCJA s. 119(4) deprived the appellant of an assessment of the relevance of the record by the Crown. As applied to the circumstances raised by the present case, the Crown's duty to inquire about and assess material is triggered when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case: McNeil, at para. 50.

[52] I accept the Crown's submission that nothing in Mills, McNeil or Quesnelle requires the Crown to obtain and review the contents of records that do not fall within the ambit of first party disclosure and that have not been shown to be potentially relevant. As the Crown points out, in Quesnelle the Supreme Court stated that "the mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution" and, as well, "the fact that a complainant has reported sexual violence in the recent or distant past […] is not, without more, enough to render a police occurrence report 'relevant'": at para. 17.

[53] The Crown submits that the appellant failed to demonstrate, on the evidence, that the EJM record was potentially relevant to an issue at the trial. Specifically, at paras. 27 and 28 of its factum, the Crown submits that:

With or without s. 119(4) the Crown would not have obtained and reviewed the youth record in this case because the appellant's claim of relevance was unfounded. Most of the "evidence" he produced amounted to nothing more than vague and unreliable hearsay. The appellant had access to multiple sources of information. His application failed because none [of] those sources revealed any relevant records. The appellant received notice of the existence of the record. He knew that it was not part of the case to meet. He had access to the boy against whom he believed an allegation had been made. That boy said nothing to suggest that his contact with police terminated because of recantation or proven falsehood. The appellant had access to the complainant and her parents at the preliminary inquiry. Their evidence did not suggest that the complainant had made a complaint to the police at all, let alone a demonstrably false or recanted one.

The only reliable evidence revealed nothing more than a father who had "found out" about "something" that was "not that serious" and had brought it to the attention of the police.

[54] I accept, as accurate, that description by the Crown of the state of the record before the trial judge. I would add that the trial record also discloses that as the argument of the applications unfolded, it became apparent that the EJM record was in respect of someone whom the defence believed to be X, not the complainant as the appellant initially submitted. Given the state of the record, it was open to the trial judge to not first dispose of the appellant's constitutional challenge to YCJA s. 119(4). The appellant failed to demonstrate that the EJM record contained potentially relevant material. The Crown's duty to inquire and assess the material for relevance was not triggered. In those circumstances, YCJA s. 119(4) did not operate to deprive the appellant of an assessment of the relevance of the record by the Crown, so the trial judge did not err by proceeding to first consider the production remedy sought by the appellant under the Mills regime, instead of determining the appellant's constitutional challenge.

[55] As mentioned, the appellant does not challenge the trial judge's first-stage Mills regime analysis. In that analysis, the trial judge considered the sufficiency of the evidentiary foundation laid by the appellant in support of his assertion that the reason no charges were laid against X was because the complainant had recanted her allegations. The trial judge concluded that suggestion was "nothing more than unfounded speculation": at para. 32.

[56] On the facts of this case, the trial judge's sequence of decision-making was not unfair to the appellant. As the trial judge pointed out, the evidence filed by the appellant on his s. 278.3 application disclosed that defence counsel had communicated with X, and it was open to the defence to obtain evidence from X regarding the details of the event that may have involved the complainant and then use that evidence in support of the third party records application: at paras. 35 and 36. In those circumstances, the appellant was not put in a catch-22 situation.

Conclusion

[57] Accordingly, given the specific facts of this case, the trial judge did not commit reversible error by first determining the appellant's s. 278.3 application. As that is sufficient to dispose of the conviction appeal, it is not necessary to consider the appellant's constitutional challenge to YCJA s. 119(4) and the interpretation of that section proffered by the Crown as Charter-compliant. [2]

PART III: SENTENCE APPEAL

[58] The trial judge imposed a global sentence of three years' imprisonment, apportioned 2.5 years to the sexual interference conviction and six months to the uttering death threats conviction.

[59] The appellant submits that the sentence was based on three errors.

[60] First, the appellant argues that the trial judge erred in concluding that the appellant "was in a position of trust and authority by virtue of his position at the church" and treating that circumstance as an aggravating factor.

[61] I see no error. The appellant was the son of the pastor of the church attended by the complainant and her parents, where he was involved in some activities involving the youth of the congregation. The complainant got to know the appellant through church activities. As the trial judge noted, the appellant groomed the complainant – who was 12 years his junior – by letting her think that he was her boyfriend, sent her sexually explicit text messages, and "took advantage of her crush on him to obtain sexual gratification." In those circumstances, the trial judge made no error in characterizing the relationship as one of trust within the meaning of s. 718.2(a)(iii) of the Criminal Code.

[62] Second, the appellant submits that at para. 28 of his reasons for sentence, the trial judge erroneously treated as an aggravating factor the lack of any evidence that the appellant was suffering from a psychological disorder. I do not read that part of the reasons for sentence as making that suggestion. Instead, the trial judge merely observed, quite accurately, that in R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.) this court stated, at para. 40, that the absence of evidence that an accused was suffering from some psycho-sexual disorder did not translate into a mitigating factor in his favour.

[63] Finally, the appellant contends that the trial judge erred by imposing a six-month custodial sentence on his conviction for uttering death threats. Instead, a fit sentence would have been a suspended sentence of one year, given the appellant's youth and lack of a prior record.

[64] I see no error. The appellant, who was 12 years older than the 14-year old complainant, sent private Facebook messages to her that contained death threats. When the complainant started to tell people at their church that she was dating the appellant, he repeatedly told her to stop doing so. Ultimately, the appellant sent the complainant a message on October 8, 2012 at 21:46 that stated:

Doooo u have any idea how piss I am

I swear if u don't go back and fix it I will kill u will be dead and I will be jail for real

[65] When the complainant replied that she had shown the appellant's father their messages discussing sex, the appellant said:

We don't talk on hook [complainant's name] I swear if u don't clear my name I will kill u and I'm not joking cuss this is not funny seriously I don't no what's making u do this but I promise if u don't I will kill u

[66] Against the gravity of that language, the trial judge gave proper consideration to mitigating factors: the appellant's good prospects for rehabilitation; his lack of a prior record; and the complainant's evidence that she did not take seriously the appellant's threats that he would kill her if she told her parents what he had done.

[67] The resulting sentence of six months for uttering death threats was not manifestly unfit in the circumstances. Nor was the global sentence of three years.

PART IV: DISPOSITION

[68] For the reasons set out above, I would dismiss the appeal from conviction. I would grant leave to appeal the sentence but dismiss the sentence appeal.

Released: November 21, 2019

"David Brown J.A."

"I agree. C.W. Hourigan J.A."

"I agree. David M. Paciocco J.A."

Footnotes

[1] By contrast, in R. v. Bottineau (2005), 32 C.R. (6th) 70 (Ont. S.C.), a case relied upon by the appellant that involved charges of first degree murder, occurrence reports formed part of the investigation: at para. 71.

[2] In the Crown's submission, s. 119(4) applies only to records that document the use of EJM in relation to an identified young person, but does not apply to parts of the investigative file that would not identify a young person as having been the subject of EJM: see R. v. R.L., [2007] O.J. No. 5293. The Crown supported this interpretation by reference to: the plain language of the provision, which refers to records "kept […] in respect of extrajudicial measures […] used in respect of a young person" (emphasis added); the structure of the YCJA, in which s. 119 creates exceptions to the access provisions in s. 118 but does not apply to records which s. 118 would not capture; the purpose of the YCJA, which seeks to protect young offenders, not complainants or witnesses; the avoidance of absurd results that might flow from a more expansive interpretation of s. 119(4); the legislative history of the YCJA, as a successor to the Young Offenders Act, R.S.C., 1985, c. Y-1, repealed, 2002, c. 1, s. 199; and the principle that Parliament is presumed to pass legislation consistent with the Charter.