WARNING
The court hearing this matter directs that the following notice 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:
Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.
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:
- Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
ONTARIO COURT OF JUSTICE
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;
CITATION: Toronto Police Service v. L.D., 2015 ONCJ 430
DATE: 2015·08·06
BETWEEN:
TORONTO POLICE SERVICE
- AND -
L.D. a young person
- AND -
STEVEN MIGNARDI
Before Justice M. L. Cohen
Decision released on August 6, 2015
Sharon C. Wilmot……………….counsel for the Toronto Police Service
Joanne Mulcahy…………………………….counsel for Steven Mignardi
Miriam Saksznajder………………………….counsel for the Office of the Independent Police Review Director
COHEN, M.L. J.:
[1] This is a ruling on an application by the Toronto Police Service for disclosure of police records pursuant to the Youth Criminal Justice Act.
[2] The Toronto Police Service (“TPS”) applies for an order allowing it to disclose police records to the parties in a disciplinary hearing commenced pursuant to the Police Services Act (“PSA”). The TPS is the prosecutor in the hearing, and the subject officer is P.C. Steven Mignardi. Although the officer has not brought his own application, P.C. Mignardi seeks access to records not included in the TPS application.
[3] The complainant in the disciplinary proceedings is a youth worker at an open detention facility in Toronto. The police records in question relate to L.D., who is the source of the complaint, and who will be a witness at the hearing. L.D. was a youth at the time of the complaint. He is now nineteen years of age.
[4] Counsel for the TPS and counsel for the officer appeared on this application. L.D. was served with notice of the application, however neither he, nor the complainant, appeared. The Office of the Independent Police Review Director (“OIPRD”) initially sought intervener status, but then withdrew its motion. Counsel for the OIPRD was, however, present for the application, and provided assistance to the Court, without objection, regarding its role in the complaints process, and with some of the procedural history of this matter.
[5] Although the TPS application seeks an order of disclosure, a preliminary question is whether the TPS requires an order for access to its own records prior to any order respecting disclosure. Accordingly and in circumstances that will become clear, the application proceeded primarily as an application for access to police records under sections 119(1)(s) and section 123 of the YCJA.
[6] The evidence on the application consisted of the affidavit of Harry G. Black, counsel for PC Mignardi, and the affidavit of Detective Roy Sorgo, who is a police officer assigned to the Prosecution Services Unit of the TPS. Mr. Black did not argue the motion.
[7] In addition, prior to hearing argument, I reviewed L.D.’s youth records. These records were produced to the court for inspection pursuant to a subpoena issued and served on the TPS at my direction. After reviewing the documents in chambers, I advised the parties in a general way of the substance of the documents for purposes of the argument.
[8] I was advised at the outset that the OIPRD had already obtained some of the records from the TPS prior to the application to this court, and in the absence of any application or court order under the Youth Criminal Justice Act. The OIPRD had also disclosed the records to counsel for PC Mignardi, and to the TPS counsel, prior to the hearing. Counsel for the OIPRD acknowledged that the OIPRD had no authority under the YCJA to obtain these records without a court order. Counsel advised that when she realized the error, she sought to retrieve the records from the parties, but only the TPS complied with her request. It appears counsel for PC Mignardi retained the records she had received, notwithstanding that they were obtained in breach of the Act.
The Complaint
[9] The application arises as a result of a complaint made to the Office of the Independent Police Review Director (“OIPRD”) regarding alleged misconduct by a police constable employed by the Toronto Police Service. The OIPRD is an arm’s length civilian agency established pursuant to the Police Services Act (“PSA”). The OIPRD is responsible for receiving, managing and overseeing all public complaints about the police in Ontario.
[10] The complaint was made by a youth worker at an open detention facility. The worker reported that on December 18, 2012, L.D. advised her that, subsequent to his arrest that day, and while in police custody in a closed police interview room, he was slapped and “stomped on” by a police officer. He stated that at one point he had difficulty breathing because he was being struck on the ribs. He stated that the officer who was striking him said, “That’s what you get for running from the police.” The youth worker obtained a signed statement from the youth, and took photographs of his injuries. The injuries included bruising and scratching on his ribs, forearms, back and face, and “a large shoe imprint on the top of his left arm.” The officer involved is alleged to be P.C. Steven Mignardi.
[11] The youth worker filed a complaint with the Office of the Independent Police Review Director (“OIPRD”). Pursuant to Part V of the Police Services Act, the OIPRD retained and investigated the complaint for possible police misconduct under section 80 of the Act.[^1] The complaint was substantiated, and, as required by the Police Services Act,[^2] the OIPRD referred the complaint to the Chief of Police of the Toronto Police Service. Barring a finding by the Chief of Police that the misconduct was not of a serious nature, the Chief was required to hold a hearing.[^3]
[12] On February 11, 2014, A Notice of Hearing was served on P.C. Mignardi. The Notice of Hearing states that P.C. Mignardi is
alleged to have committed misconduct in that [he] did act in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force…
Disciplinary Hearings
[13] Disciplinary hearings under the PSA are to be conducted in accordance with the Statutory Powers and Procedures Act (“SPPA”). Misconduct must be proved on clear and convincing evidence. If the Chief of Police finds misconduct, he is required to take any action described in section 85 of the Act.[^4] Under section 85, the Chief of Police could:
a. dismiss the police officer from the police force;
b. direct that the police officer be dismissed in seven days unless he or she resigns before that time;
c. demote the police officer, specifying the manner and period of the demotion;
d. suspend the police officer without pay for a period not exceeding 30 days or 240 hours, as the case may be;
e. direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be;
f. direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be; or
g. impose on the police officer any combination of penalties described in clauses (c), (d), (e) and (f). 2007, c. 5, s. 10.
Additional powers
[14] In addition to or instead of a penalty described above, the Chief of Police may:
(a) reprimand the police officer;
(b) direct that the police officer undergo specified counselling, treatment or training;
(c) direct that the police officer participate in a specified program or activity;
(d) take any combination of actions described in clauses (a), (b) and (c).
[15] With respect to the possible penalties of dismissal or demotion, section 85(4) of the PSA provides that
(4) The chief of police or board, as the case may be, shall not impose the penalties of dismissal or demotion under subsection (1) or (2) unless the notice of hearing or a subsequent notice served on the chief of police, deputy chief of police or other police officer indicated that they might be imposed if the complaint were proved on clear and convincing evidence.
[16] I have reviewed the Notice of Hearing provided to me at my request by counsel for the officer, and there is no notice respecting the penalties of dismissal or demotion.
[17] Counsel for the officer emphasizes other consequences for the officer of a disciplinary proceeding that may be considered penalties. From the time the Notice of Hearing is issued, the officer must disclose in a McNeil Report the fact that he is the subject of disciplinary proceedings. If misconduct is found, that fact must be disclosed in the McNeil Report. Where relevant, the McNeil Report will form part of first party Crown disclosure in criminal prosecutions in which the officer is involved as an investigating, arresting, or seizing officer, etc. (R. v, McNeil, 2009 SCC 3; R. v. Kresko [2012] O.J. No. 6385 (Ont. S.C.J.). In addition, the finding of misconduct will be published on the public web site maintained by the OIPRD.
Police Records Regarding L.D.
[18] The TPS and the officer submit that they require access to L.D.’s youth records for purposes of the disciplinary hearing. The following is a brief summary of those records based on my review. Beside each record I note the access period. Under the YCJA, the access period determines which statutory test the applicants must satisfy on this application.
[19] The records produced to the Court indicate that L.D. was arrested on four occasions between May 31, 2012, and December 18, 2012. The history is as follows:
- On May 1, 2012, L.D. was charged with theft under. On May 19, 2012, he was charged with a related offence of trafficking in stolen goods. According to the CPIC record filed, LD was found guilty of theft under on May 21, 2013. He received a Conditional Discharge of 12 months (3 days pretrial custody)[^5]. The access period expires May 21, 2016. While there is no record indicating the disposition of the trafficking charge, the most reasonable assumption, based on my review of all the records, is that this charge was withdrawn. The access period for this charge would have likely expired July 21, 2013;
- On November 29, 2012, LD was charged with possession of marijuana (1.23 g), possession of a controlled substance (Percocet - .35 g.), and possession of a prohibited weapon (flick knife). On January 25, 2013, all the charges were withdrawn, The access period expired March 25, 2013;
- On December 13, 2012, LD was charged with possession of marijuana (rolling a joint) and failing to comply with recognizance (abstain from possessing marijuana). On June 6, 2013, the fail to comply charge was withdrawn. On the same date L.D. was found guilty of possession of marijuana and received a judicial reprimand. The access period expired August 6, 2013;
- On December 18, 2012, LD was charged with failing to comply with recognizance (curfew), and three Highway Traffic Act charges. On May 21, 2013, he was found guilty of failing to comply with recognizance, and received a conditional discharge of 12 months and a 50 hour community service order. The Highway Traffic Act charges were withdrawn. Depending on whether the community service order was a stand-alone sentence or was made a condition of the conditional discharge (as commonly happens), the access period will expire May 21, 2016 or 2017.
[20] I now turn to the test the applicants must satisfy on this application.
Access to Police Records Under the YCJA
[21] Part 6 of the YCJA governs publication, records and information respecting young persons dealt with under the Act. Its statutory purpose is to protect the privacy of young persons. In this case it is useful to begin with section 118. In S.L. v. N.B., 2005 11391 (ON CA), [2005] O.J. No. 1411(Ont. C.A.), Doherty, J. says
Section 118(1) is central to the statutory scheme controlling access to records set up in the YCJA:
Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act [emphasis added].
Section 118 announces an unequivocal and unqualified prohibition against access to records kept by the court, police, or Crown except as required or authorized under the Act. This prohibition is made all the more emphatic by s. 138 which makes it an offence to violate s. 118. (pars.45-46)
[22] Police records fall under section 115 of the Act, and are governed by section 118. Thus, police records are presumptively inaccessible unless required or authorized under the Act.
[23] It appears from the application filed by the TPS that only disclosure of police records is sought. This formulation assumes that the TPS has a right of access to its own records. Is the TPS correct in this assumption?
[24] Two sections of the YCJA permit the police to access their youth records, section 118(2), and section 119(1) (g). Section 119 (1)(g), which has no application here, enables a peace officer to have access to youth records for
i. law enforcement purposes, or
ii. any purpose related to the administration of the case to which the record relates, during the course of proceedings against the young person or the term of the youth sentence;
[25] To access police records which are not covered by section 119(1)(g), police officers rely on the exception under section 118 for access:
Exception for employees
(2) No person who is employed in keeping or maintaining records referred to in subsection (1) is restricted from doing anything prohibited under subsection (1) with respect to any other person so employed.
[26] Section 118(2), thus authorizes a police officer to have access to police records, and to give the information in those records, to other police officers. The police service is otherwise bound by the proscription under section 118(1), that is, employees are prohibited from accessing and giving information in police records to persons not employed by the police service unless otherwise authorized or required. On this basis, the section 118(2) exception does not extend to an employee of the TPS accessing or disclosing the information in police records for purposes of disciplinary hearings, since persons not employed with the police service are participants in these hearings.
[27] In addition, Section 118 (2) must be interpreted in light of its statutory context. Parliament has expressed in Part 6 a clear intention that access to youth records be carefully and tightly controlled.[^6] The statutory context compels a narrow interpretation of the section 118(2) exception. From this perspective, a proper and reasonable interpretation of section 118(2) - one which is consistent with the privacy protections under the Act - is that the exception is available only where access or disclosure is exercised for purposes consistent with police duties set out at section 42 of the Police Services Act. Youth records generated in the exercise of police duties must be accessible for like purposes. Where the purpose of accessing a youth record is extraneous to the exercise of a police duty, as in the case of a disciplinary hearing, the exception will not apply.
[28] I find that if the TPS or an officer wishes to access police records relating to young persons for non-section 42 purposes, an application to a youth court judge is required under Part 6. By analogy I would note that authors of section 34 mental health assessments routinely ordered by the court for sentencing purposes must apply for access to their own reports if they wish to use their own assessments for research and statistical purposes.
[29] Thus, as is the case for the officer, (who for that matter could claim the same exception as the TPS), I conclude that the TPS must establish entitlement to access under section 119 (1) (s) or section 123 of the Act where access is sought to youth records for purposes of a police disciplinary hearing under Part V of the Police Services Act.
[30] Having found that the TPS and the officer must both seek access under sections 119 (1) (s), and 123 of the Act, I now turn to a review of those sections.
Section 119(1) (s) and Section 123
[31] Whether an application for access is governed by section 119 or section 123 of the Act will depend on whether the records fall within or outside of the periods for access to records set out in section 119(2). Under section 119(2), the length of the access period varies in proportion to the seriousness of the disposition or the offence. By way of example , the access period for records of withdrawals and reprimands is two months (s.119(2)(c)), whereas the access period for records where a conditional discharge is imposed is for the period ending three years after the finding of guilt (s. 119 (2)(f)).
[32] Section 119(1) (s) provides that a court may order access to section 115 records within the access period to
(s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.
[33] Section 123 applies to applications brought outside the access period:
- (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, 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; …
[34] It is apparent that section 123 provides for a more stringent access test than section 119(1)(s): “valid and substantial” as opposed to “valid”, “necessary” rather than “desirable.” This follows from the fact that records which fall outside the access period are subject to destruction, disposal or archiving under section 128 of the Act. Because this section is so important to the access scheme, I set it out here in full:
- …
Disposal of records
(2) Subject to paragraph 125(7)(c), any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for any province, at any time before or after the end of the applicable period set out in section 119.
Disposal of R.C.M.P. records
(3) All records kept under subsection 115(3) shall be destroyed or, if the Librarian and Archivist of Canada requires it, transmitted to the Librarian and Archivist, at the end of the applicable period set out in section 119 or 120.
Purging CPIC
(4) The Commissioner of the Royal Canadian Mounted Police shall remove a record from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police at the end of the applicable period referred to in section 119; however, information relating to a prohibition order made under an Act of Parliament or the legislature of a province shall be removed only at the end of the period for which the order is in force.
Definition of “destroy”
(7) For the purposes of subsections (2) and (3), “destroy”, in respect of a record, means
(a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and
(b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form.
[35] In the case at bar, the records relating to the theft under charge from May 1, 2012, and the fail to comply recognizance charge from December 18, 2012, are within the access period. In order to access these records, the applicant must meet the statutory test under section 119(1)(s).
[36] The charges of trafficking in stolen goods from May 1, 2012, possession of marijuana, possession of a controlled substance, and possession of a prohibited weapon from November 29, 2012, and possession of marijuana and fail to comply recognizance from December 13, 2012, all fall outside the access period. The applicants must meet the test under section 123 in relation to these charges.
Access v. Disclosure
[37] Finally, and because the TPS asked only for authorization to disclose records in its application, I will briefly address the distinction in the Act between “access” and “disclosure”.
[38] Section 110 of the Act provides that
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.
[39] Under section 2, “Publication” means the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means.
[40] “Disclosure” means the communication of information other than by way of publication. Section 129 provides that
No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.
[41] Section 110 and section 129 are mandatory. Thus, notwithstanding that access to records may be authorized, publication and disclosure of those same records remains strictly controlled, and generally prohibited.
[42] It is clear nonetheless that judges routinely authorize disclosure of records to which they have granted access, despite the prohibition against disclosure. While there is conflicting jurisprudence regarding the legal basis for such orders, I do not find it necessary to address the issue because of the manner in which I am resolving this application.
Position of the Parties
[43] As I have indicated, the applicants must establish, depending on the applicable section, either that they have a valid interest in the record, and that access is desirable in the interest of the proper administration of justice (s. 119 (1)(s)), or that they have a valid and substantial interest in the record, it is necessary for access to be given in the interest of the proper administration of justice, and disclosure of the record or the information in it is not prohibited under any other Act of Parliament or the legislature of a province (s. 123).
[44] Both applicants argue that they have satisfied the statutory test in the records that are within the access period. If successful, this claim would afford access to the theft under charge from May of 2012, and the fail to comply charge from December 18, 2012.
[45] The officer contends he has satisfied the statutory test for the section 123 records as well. The TPS disputes this claim.
Position of the TPS
[46] The TPS contends that it requires access to the section 119(1) (s) records to satisfy its obligations under the Police Services Act, and the Statutory Powers and Procedures Act.
[47] Under the Police Services Act, the duty of the prosecution is to comply with section 83(5) of the Police Services Act. This section requires the prosecution to give the police officer and the complainant an opportunity to examine any physical or documentary evidence that will be produced, or any report whose contents will be given in evidence, before the disciplinary hearing.
[48] Under the Statutory Powers and Procedures Act, the TPS submits that its duty is to provide the officer with reasonable information regarding the allegations against him, and the information upon which the prosecution intends to rely. Section 8 of the SPPA provides that
Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto
[49] In sum, the TPS argues it is entitled to access/disclosure because it has a valid interest in the record and access/disclosure is desirable in the interest of the proper administration of justice in the prosecution of a disciplinary hearing.
[50] Before leaving the argument advanced by the TPS in support of its application, I want to point out one difficulty with regard to its request to limit access/disclosure to the records relating to the theft under charge, and the fail to comply recognizance charge, both of which were resolved in May, 2013.
[51] With respect to the fail to comply records, the TPS takes the position that access/disclosure should be granted only to records relating to the recognizance that resulted in the conditional discharge, that is, to the recognizance which resulted in the fail to comply charge laid December 18, 2012. From my review of the records - and I must qualify my conclusions because I have not seen any court records - I find that none of LD’s charges had been resolved on December 18, 2012, the date of the arrest which resulted in the disciplinary hearing. Thus, it appears L.D. was on a promise to appear or recognizance for the entire period between May 1, 2012 and the dates the outstanding charges were resolved.
[52] In the police synopsis regarding the fail to comply charge (the record the TPS wishes to disclose to the officer), the underlying recognizance is described as a “global” recognizance, i.e. it was a recognizance relating to all of LD’s outstanding charges. If this is indeed the case, and if disclosure should be ordered on the basis that the recognizance and its underlying charge relate to the events of December 18, 2012, then, as the officer’s counsel argues, all of the records should be disclosed.
[53] I have not seen the recognizance so I am unable to say, based on the records, whether or not the recognizance was “global”. However, I find counsel’s argument logical. Nonetheless, as I shall explain shortly, I do not find it relevant to my decision.
Position of P.C. Mignardi
[54] I now turn to the access request of PC Mignardi. The officer argues that as the subject of the hearing, he is in a similar position to the TPS in relation to the test for access to section 119(1) (s) records. However, he parts company with the TPS on the issue of access to the section 123 records.
[55] As I have noted, the TPS submits that providing the officer with disclosure of the theft under and fail to comply records, is sufficient to satisfy its obligation to inform the officer of the case he has to meet. However, counsel for the officer argues that in order to properly prepare for, and defend the misconduct charge, she requires access to all of LD’s police records. Indeed, counsel for the officer frames her submission as an all or nothing proposition: Either she has access to all the records, or she will not accept access/disclosure of any of them. Counsel submits that since none of the charges had been disposed of on December 18, 2012, and the youth was subject to recognizances on all the charges, then “the underlying matters are all related” and access should be granted to all of them. As I have noted, by reason of the global bail, I agree with the general proposition that the charges cannot be extricated from one another.
[56] Counsel for the TPS argues that a police disciplinary hearing should be approached as an administrative hearing in an employment matter, not as a criminal proceeding. She submits that as a matter of administrative law, the prosecution in a disciplinary hearing has no Stinchcombe disclosure obligations to the subject officer. For this proposition counsel relies on the case of May v Ferndale Institution 2005 SCC 82, [2005] 3 S.C.R. 809, which held that
These cases do not involve a criminal trial and innocence is not at stake. The Stinchcombe principles do not apply in the administrative context. In the administrative context, the duty of procedural fairness generally requires that the decision-make discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet (par. 92).
[57] The TPS argues that a party to an administrative disciplinary hearing is
not entitled to use a request for disclosure to rummage around the files of the adverse party to see if a case can be made[^7].
[58] The TPS submits this proposition is particularly apt where access is sought to youth records.
[59] The officer argues that because his livelihood and reputation are at stake in the disciplinary hearing, he is entitled to a broader right of disclosure than submitted by the TPS. He relies for this proposition on Sheriff v. Canada (Attorney General) 2006 FCA 139, [2006] F.C.J. No. 580, and other cases which hold that in cases involving loss of livelihood or reputation there is a higher standard of procedural fairness. The officer submits that under this higher standard he should be found to have a valid and substantial interest in all of LD’s police records, and that access should be ordered in the interest of the proper administration of justice.
[60] Further the officer denies that he wishes to “rummage around” the youth records “to see if a case can be made”. Counsel submits that the records are directly relevant to the officer’s defence. The purported relevance is set out in Mr. Black’s affidavit:
[L.D.]’s state of mind, animus, credibility, veracity, reliability and truthfulness will be at issue in the Police Services Act hearing. The disclosure sought will be essential to addressing [L.D.]’s state of mind, animus, credibility, veracity, reliability and truthfulness.
[61] Mr. Black further deposes that
“It will be very relevant and probative to cross-examine [L.D.] on his discreditable conduct that led up to his arrest on December 18, 2012”,
and that the information in the records “will be useful to the defence in disclosing [L.D.]’s discreditable conduct.”
Analysis
[62] I begin my analysis with an acknowledgement of the competing interests which are clashing in this access application. I accept that a police disciplinary hearing is a very serious matter for the subject officer, the Toronto Police Service and the administration of justice. There is a high public interest in the process and the outcome of a police discipliniary hearing.
[63] There is also a very high public interest in protecting the privacy of young persons and in protecting the efficacy of the Youth Criminal Justice Act.
[64] This application is brought under Part 6 of the Youth Criminal Justice Act. The duties and prohibitions elaborated in Part 6 are part of a statutory regime which demands that strict control be exercised over youth records generated by police, courts, and government or other agencies involved with youth under the Act.
[65] Protecting the privacy of young persons is a cornerstone of the YCJA (R. v. D.B., 2006 8871 (ON CA), [2006] O.J. No. 1112 (Ont. C.A., par 76), and Part 6 is fundamental to its entire structure. The reasons for this are well understood. As the Quebec Court of Appeal states succinctly in Quebec (Minister of Justice) v. Canada (Minister of Justice) (2003), 2003 52182 (QC CA), 175 C.C.C. (3d) 321),
The justice system for minors must limit the disclosure of the minor's identity so as to prevent stigmatization that can limit rehabilitation.
[66] This principle has been recognized in the Supreme Court of Canada decision in Regina v. D.B., and is the law of Canada and many other countries.
[67] I have noted that LD is nineteen years of age. The right to privacy guaranteed under the Act is not lost when a youth becomes an adult. The definition of “young person” in section 2 includes “any person who is charged under the Act with having committed an offence while he or she was a young person or who is found guilty of an offence under this Act.” Thus, notwithstanding that L.D. is no longer a minor, he retains his right to privacy in his youth records.
[68] L.D. has a high and protected right to privacy under the Youth Criminal Justice Act. For this reason, the police records are presumptively inaccessible. L.D.’s right to privacy in his youth records continues to this day.
[69] Counsel for the officer argues that access is necessary to enable her to cross-examine L.D. on the entire history of his interaction with the youth criminal justice system and with the police[^8]. However, this argument fails to address a central issue. Given the strength of the youth’s privacy interests, as reflected in section 118(1) of the Act, the burden on the applicants is to establish an interest which “is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come into conflict with the law”[^9]. To succeed, the applicants must begin by establishing a nexus between the record, and the reason access is sought. For example, if the youth had a record for perjury, or assaulting a police officer, such a nexus could be found.
[70] In this application I find no nexus between any of the records, and the events alleged in the complaint. I see no specific quality in the events alleged that would suggest the youth’s records are material or relevant to the complaint. Of course the complaint presupposes the youth was in custody, which he was. The complaint presupposes there was contact between an officer and the youth. The transaction in question is what occurred between the officer and the youth in the interview room at the police division. The identity of the officer and the particulars of the contact will be the subject of the hearing. Where is the nexus to the youth records?
[71] I turn to the arguments of counsel: Counsel for the officer submits that the youth was heard to say he did not want to go to jail while in police custody, and that this statement opens the door to cross-examination on the records. It is argued that the youth’s fear of incarceration is relevant to his credibility, or to establishing his conduct while in police custody. If the desire to avoid incarceration, simpliciter, establishes relevance, then no records would be safe from claims for access.
[72] It is argued on behalf of the officer that he has a valid interest in access to the records for purposes of cross-examination, to establish that L.D. is not credible, and that he has a history of discreditable conduct. I reject this argument.
[73] What is there in the records relevant to credibility? The only charge remotely connected to credibility is the one charge of theft from May, 2102. The notion that a youth theft charge from 2012 reflects on the credibility of an adult witness is dubious. In this case there is no long history of charges reflecting dishonesty, or relevant to credit.
[74] The argument that LD’s youth records suggest a history of discreditable conduct is similarly untenable. In LD’s record there are no serious charges in the records which might reflect negatively on his character.
[75] L.D. has a minor youth court record. He has been found guilty of theft, breach of recognizance, and possession of a small amount of marijuana. All of his other charges were withdrawn. The most significant penalty imposed on him was a conditional discharge.
[76] At the time these records were generated, LD was a youth, not an adult. He was and remains entitled to the presumption of diminished moral culpability in respect of his youthful offending. The principle of diminished moral culpability reduces or eliminates the relevance of the record as an indicator of “discreditable conduct.”
[77] As a young person under the Act, LD has the benefit of section 82, which provides that once a sentence is completed, the young person is deemed not to have been found guilty of the offence (except in limited circumstances which have no application here). Section 82 further diminishes or eliminates the relevance of the youth record as an indicator of discreditable conduct.
[78] Most of L.D.’s police records are awaiting destruction or archiving under the Act. The fact that youth records are subject to destruction is consistent with the principle of diminished culpability enshrined in the Act, and inconsistent with the argument that the charges in this case are relevant to his credit or character as an adult witness.
[79] It is for these reasons that I find the TPS, and the officer, have no valid, and, a fortiori, no valid and substantial interest, in the records.
[80] I also wish to address the question of the interest of the proper administration of justice in relation to the access application. In my view, to permit access to records in the circumstances before the court, would undermine the proper administration of justice under the YCJA and the PSA.
[81] The YCJA forms part of a long judicial history which requires youth to be treated differently than adults. Presumptions about the relevance of police youth records to the credibility or character of a witness, are contrary to the entire philosophy of the YCJA. It is for reasons like these that a right of access to youth records requires a court order.
[82] Furthermore, the Supreme Court of Canada has held that young people are entitled to a presumption of diminished moral culpability in sentencing as a principle of fundamental justice under section 7 of the Charter. Treating youth records, particularly the records in this case, as indicators of bad character (discreditable conduct), or as relevant to credibility, undermines that fundamental principle.
[83] With respect to the PSA, I would add that it is likely that many young people initiating complaints about police conduct will have youth court records. Unless the records are demonstrably relevant, allowing parties to a misconduct hearing to “rummage in the records” risks deterring a vulnerable class of complainants from making or pursuing complaints under the PSA, and undermines the effectiveness of the complaints process. All of these considerations must be taken into account in assessing the interest of the administration of justice in a records application under the Act.
[84] I conclude that, in this case, access would be contrary to a proper interest in the administration of justice.
[85] The applicants are obliged to satisfy the court that the requirements of section 119(1)(s), in relation to records inside the access period, and of section 123, in relation to records outside the access period, are met. I have concluded that the requirements are not met.
[86] I find that the TPS and the officer, have failed to establish a valid interest in the section 119 records, or a valid and substantial interest in the section 123 records.
[87] I further find that the TPS, and the officer, have failed to establish that access to the records is desirable in the interest of the proper administration of justice in relation to the section 119 records, or necessary in the interest of the proper administration of justice, in relation to the section 123 records.
[88] For all of these reasons, I conclude there should be no access by the TPS and the officer to the records of LD. The application is dismissed.
Released: August 06, 2015. ___________________
Justice Marion Cohen
[^1]: s. 68.(1) [^2]: s. 68(3) [^3]: s. 68(5) [^4]: s. 84(1) [^5]: LD’s youth court record, filed on the application, shows only one finding of guilt in relation to the theft charge. The two other findings of guilt are shown as entries on police tracking records. [^6]: S.L. v. N.B., pars. 42 and 54 [^7]: Constable Joseph Cardi v. Peel Regional Police Service, a decision of the Ontario Civilian Police Commission dated June 18, 2013. [^8]: As an aside, I note that it has not been suggested that the officer was aware of any of that history on the date in question. [^9]: S.L. v. N.B, par. 42