WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: St. Catharines Date: 2014-07-30 Ontario Court of Justice

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen Applicant

— And —

SJP Respondent

Before: Justice D.A. Harris

Heard: May 15, 2014

Ruling: July 30, 2014

Counsel:

• M. Eshuis, counsel for the Crown/Applicant
• SJP, In Person, Respondent

RULING

HARRIS J.:

INTRODUCTION

[1] SJP has been charged with two counts of sexual assault contrary to section 271 of the Criminal Code of Canada. These offences are alleged to have occurred on October 7, 2012. The matter is before the Superior Court of Justice in Welland.

[2] It is alleged that SJP was charged with sexual assault and sexual interference for similar matters in 2002 when he was 16 or 17 years of age.

[3] Crown counsel has applied for an order pursuant to section 123 of the Youth Criminal Justice Act which would allow access to the following records regarding the 2002 charges from their respective record holders:

(a) Niagara Regional Police Service: police records (including but not limited to the synopsis, statements from the complainants and witnesses, police statements and notes, forensic evidence, medical evidence, youth court record);

(b) RCMP: youth court record; and

(c) Court Services: court transcripts and exhibits (including any pre-sentence report, medical reports) of the proceedings and a certified copy of the information.

[4] Crown counsel argued that access to the records is necessary in order to determine if a similar fact application could be brought successfully with respect to the current charges.

[5] SJP is represented by counsel with respect to the criminal charges which he is currently facing. He appeared on his own behalf however with respect to this application and opposed the Crown's request.

THE LAW

[6] The relevant portions of section 123 of the Youth Criminal Justice Act provide that:

123. (1) A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person,

(a) if the youth justice court judge is satisfied that

(i) the person has a valid and substantial interest in the record or part,

(ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice, and

(iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province;

(5) In any order under subsection (1), the youth justice court judge shall set out the purposes for which the record may be used.

[7] There is no dispute that

(1) I am a youth justice court judge and as such can make the order sought;

(2) The records sought are kept pursuant to sections 114 to 116;

(3) The period set out in subsection 119(2) has ended; and

(4) Disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province.

[8] The issues for me to decide are whether Crown counsel has a valid and substantial interest in the record, and whether it is necessary for access to be given to the record or part in the interest of the proper administration of justice.

THE FACTS RELIED UPON IN THIS APPLICATION

[9] The current allegations against SJP are that he sexually assaulted the 16 year old complainant. She was at a party where she drank alcohol to the point where she was drunk. At some point, SJP and his 18 year old brother AP drove their car to purchase soft drinks. The complainant accompanied them. She did not know SJP but was an acquaintance of his brother. SJP forced her to perform fellatio on him. He also stopped the car and placed his finger in her vagina.

[10] Detective Constable Essery of the Niagara Regional Police investigated this matter. In an affidavit filed in support of this application, he stated:

6. While investigating this matter I accessed our records management system and discovered a general occurrence report and a charge report involving the Respondent from 2002 when he was 16 or 17 years, of age. The charges were sexual assault and sexual interference. The two complainants aged 12 and 14 were friends of the Respondent's younger brother, [AP], and the complaints involved fellatio.

7. In reviewing these reports, I discovered that Constable Valenti (nee Gibson) took the original report and Constable Fuentes (nee Forgeron) was the investigating officer. I verily believe that these officers still have access to their duty book notes.

8. I spoke to Amy Cheatley at Central Records to determine if the file on this matter still existed and was advised that it had been purged, likely because the access period for the records pursuant to the Y.C.J.A. has expired.

9. In running the Respondent's local and CPIC records, there are no youth record entries listed, likely because the access period for the records pursuant to the Y.C.J.A. has expired.

THE POSITIONS OF THE PARTIES

[11] Crown counsel argued that access to the records is necessary in order to determine if a similar fact application could be brought successfully with respect to the current charges.

[12] SJP filed a handwritten document setting out why he opposed this application. He stated:

My matters occurred when I was 16 years old and the privacy parts of the Youth Criminal Justice Act have been specifically [sic] placed in the youth law to make sure that my privacy is protected. The youth law provides special guarantees of my rights when I was a youth to make sure I am treated fairly – especially my right to privacy.

The youth charges occurred sometime in 2002 or so when I was 16 years old and I am entitled to make a fresh start as an adult.

The old charges have nothing to do with the new charges over 10 years ago.

ANALYSIS

[13] As I stated earlier, the issues before me are whether Crown counsel has a valid and substantial interest in the records sought, and whether it is necessary for access to be given to the records or part in the interest of the proper administration of justice.

[14] Access may be granted only if I am satisfied with respect to both of these two prerequisites.[^1]

[15] I agree with the comments of Feldman J. in R. v. C.F. where he stated:

I am mindful of the special consideration given youthful offenders as set out in the Declaration of Principle contained in s. 3 of the YCJA, including the social value of protecting the privacy interests of young persons to avoid stigmatization and encourage rehabilitation and reintegration. It would follow that the Court should take a restrictive approach to permitting access to sealed youth records. At the same time, the public interest in effective law enforcement must be acknowledged in relation to disclosure of the records in specified circumstances.[^2]

[16] Parliament has placed very strict limits on the use that can be made of records involving youths. Parliament has not however prohibited all use of such records. Rather, section 123 permits a youth justice court judge to order that access to the records be allowed in the appropriate circumstances.

[17] In deciding whether to make such an order here, I must balance the important privacy rights of a young person against the public interest in having the record of serious prior behaviour placed before the court.[^3]

[18] I do not know if the contents of the records will become part of the upcoming trial. Crown counsel will only be able to decide whether to pursue an application to introduce "similar fact evidence" after reviewing the contents of the records.

[19] If Crown counsel elects to pursue such an application, I agree with the position taken by Pringle J. in R. v. P.A.D. where she stated at para. 26 that "my decision as a Youth Court judge to disclose these records to the Crown does not touch on their ultimate admissibility or probative value at the Superior Court hearings."[^4]

[20] It will be up to the trial judge in the Superior Court of Justice to decide if the Crown has satisfied the onerous requirements established by the Supreme Court of Canada regarding the introduction of similar fact evidence.[^5]

[21] I note that in R. v. N.B. Griffin J. granted an application for access to the records relating to a withdrawn charge. Crown counsel there also wished to use the records in support of an application to introduce similar fact evidence.[^6]

[22] I am satisfied that the records sought here might support an application to introduce similar fact evidence.

[23] I am further satisfied that such evidence could have a significant impact in the trial of very serious charges.

[24] I note that any such evidence will come from the original witnesses and not in the form of the records sought by Crown counsel. The records will simply provide a starting point of a further investigation of the old cases.

[25] I am also satisfied that SJP's interests will be more than adequately protected during any proceedings in the Superior Court of Justice.

[26] As a result, I am satisfied that the potential for probative value outweighs the potential for prejudicial effect.

[27] I find that Crown counsel has a valid and substantial interest in the records sought and that it is necessary for access to be given to those records in the interest of the proper administration of justice.

[28] The application for access to and disclosure of the records is granted. Use of the records will be limited to the prosecution of SJP on the existing charges of sexual assault.

Released: July 30, 2014

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[^1]: S.L. v. N.B., [2005] O.J. No. 1411 (Ont. C.A.) per Doherty J.A. at para. 53.

[^2]: R. v. C.F., [2005] O.J. No. 3708 (Ont. C.J.) per Feldman J. at para. 13.

[^3]: See F.N. v. The Queen, 2000 SCC 35, [2000] 1 S.C.R. 880 (S.C.C.) per Binnie J. at paras. 10 to 13; R. v. E.H.B.M., [1996] B.C.J. No. 1019 (B.C.C.A.) per Prowse J.A. at para. 50; K.F. v. Peel Police Services Board, [2008] O.J. No. 3178 (Ont. C.J.) per Blacklock J. at para. 16; R. v. J.K., [2009] O.J. No. 4884 (Ont. C.J.) per Weinper J. at para. 18.

[^4]: R. v. P.A.D., [2008] O.J. No. 567 (Ont. C.J.) per Pringle J. at para. 26.

[^5]: In R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 (S.C.C.) at para. 101, Binnie J. wrote that "The starting point ... is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice". I have previously reviewed the relevant law in R. v. M.B., 2009 ONCJ 446, [2009] O.J. No. 3960 (Ont. C.J.) and will not repeat that here.

[^6]: R. v. N.B., [2011] O.J. No. 3895 (Ont. C.J.) per Griffin J.