ONTARIO COURT OF JUSTICE

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:

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 Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

ONTARIO COURT OF JUSTICE

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

CITATION: Chief of Police of the Toronto Police Service and Toronto Police Services Board v. T.W., 2017 ONCJ 259

DATE: 2017·April·19

Toronto

BETWEEN:

CHIEF OF POLICE OF THE TORONTO POLICE SERVICE AND

TORONTO POLICE SERVICES BOARD

v

T.W. and M.W.

Before Justice M. L. COHEN

Heard on March 16, 2017

RULING released on April 19, 2017

P. Chan ............................................................................................ counsel for the Applicants

M. Mulgrave ................................................................................ counsel for the Respondents

Cohen, M. L. J.:

[1] This is a ruling on an application under Part Six of the Youth Criminal Justice Act for an order granting the parties access to police records kept or created under the Act. The question in this case is whether, in the absence of specific statutory authorization, the court has jurisdiction to grant access to police records which did not result in criminal charges or extrajudicial measures.

Background

[2] The applicants are the Toronto Police Services Board and the Toronto Police Service. The respondent TW is a youth. The respondent MW is his mother and his Litigation Guardian in an application before the Human Rights Tribunal of Ontario.

[3] In her application to the Human Rights Tribunal, MW alleges that TW has been the subject of discrimination by the police based on his race, colour, place of origin, ethnic origin and disability. The alleged discrimination involved a police interaction with TW which occurred October 27, 2015. Police records were created during and after the interaction. Access to these records is governed by the Youth Criminal Justice Act.

[4] The respondents seek access to the records for the purpose of prosecuting the Human Rights Tribunal claim. The applicants seek access to the records for purposes of defending the claim.

[5] Since all parties require access to the records, the application is proceeding on consent, subject to the court’s being satisfied there is jurisdiction under the Act to make the order.

[6] Although the Chief of Police of the Toronto Police Services and the Toronto Police Services Board are the titular applicants, the principle seekers of the access, and moving force in this case, are the respondents.

Facts

[7] I begin with a brief description of the events underlying the records application, as set out in the respondents’ application to the Human Rights Tribunal:

[8] TW attends a specialized school in Toronto for children with mild intellectual disabilities. He has been diagnosed with communication autism. The majority of the children at this school, including T.W., are Black.

[9] On October 27, 2015, T.W. was walking around the outdoor basketball court at his school while listening to his Mp3 player. A van stopped nearby and two police officers with the TAVIS unit exited. One of the officers grabbed TW by his hands and leaned him up against a parked car. TW’s Mp3 player fell to the ground. One of the officers informed TW that a robbery had been perpetrated around the corner by “a couple of kids.” The officer asked TW why he had run away when he saw the police officers, and why he was hiding behind cars. TW said he was just walking around, and that he did not do anything. The officer holding TW’S hands told him he was being detained for committing robbery.

[10] TW continued to state that it wasn’t him. One of the officers then called the dispatch to inquire about the description of the suspect. TW did not match the description, and the officers released him. As TW was walking away, one of the officers stopped him and asked for his name and his date of birth, which TW provided.

[11] TW returned to his school and told his teacher what had happened. She reassured him he had done nothing wrong. When TW returned home that evening his mother, MW, saw that he was visibly distressed. TW hid in a closet. MW found a note from the teacher in TW’s communication book advising her of the incident.

[12] For some time following the incident, TW continued to be upset - crying, and hiding in the closet or under his bed. He refused to return to school, and said he wanted to kill himself.

[13] MW spoke to the school and the police. She was dissatisfied with the responses to her inquiries. In particular, it appears she found the police officers with whom she spoke to be evasive, insensitive and dismissive.

[14] MW was permitted to view police videos recording the incident. These videos gave rise to further concerns.

[15] MW commenced an application on TW’s behalf to the Human Rights Tribunal of Ontario, alleging discrimination by the police. To prosecute her claim she requires access to police notes and reports of the incident, as well as copies of video and audio recordings. She also requires the ability to disclose and publish the records within the Tribunal proceedings.

Law and Analysis

[16] “Records” are defined under the YCJA as follows:

record includes any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act. (dossier)

[17] The records in this application were created or kept for the purposes of the YCJA, or for the investigation of an offence that is or could be prosecuted under the YCJA, and are thus records as defined in the Act.

[18] The police are entitled to maintain records of their interactions with young persons under section 115 of the Act. Pursuant to this section,

A record relating to any offence alleged to have been committed by a young person,... may be kept by any police force responsible for or participating in the investigation of the offence.

[19] TW was detained by the police as a potential suspect in a robbery. The records of that interaction are police records under section 115. The police records are ICAD reports, police notes and videos. The records were subpoenaed for review by the Court and marked Exhibits “A” and “B”.

[20] Police records kept under section 115 are subject to the privacy provisions in the YCJA, and are presumptively inaccessible under section 118, which provides that

118 (1) 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.

[21] Thus the police records sought in this case are inaccessible unless “authorized or required” by the Act. The question for the Court is whether the Act authorizes access in the circumstances of this case.

[22] Because access to youth records is strictly controlled under the YCJA, a party seeking access must establish a statutory pathway enabling access. The first step requires that the applicant establish the nature of the record sought.

[23] In this case there was a detention and release of a young person. The police took no further action. Because “taking no further action” is one form of extrajudicial measure, the threshold question is whether an extrajudicial measure was used by the officers who detained TW. Since the officers took no further action in dealing with TW, it might be argued that the records are kept in respect of extrajudicial measures, and thus are subject to the restrictive accessibility test under section 119(4).

[24] All parties take the position that the police records do not establish that an extrajudicial measure was used.

[25] Extrajudicial measures are defined in section 2, as

...measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence and includes extrajudicial sanctions.

[26] An extrajudicial measure may be a warning, a police caution (provided a program for cautions has been established in a province), or a referral to a community program or agency. A decision by an officer to take no further action (i.e. not to administer a warning, caution, make a referral to a community agency, or commence judicial proceedings) constitutes use of an extrajudicial measure. I agree with counsel that the fact that the officers took no further action in this case after detaining the young person did not constitute an extrajudicial measure.

[27] It is clear from sections 4, 5 and 6 of the Act, that the extrajudicial measure is an instrument to be considered for use by the police, before a decision is made to lay a charge, in circumstances where a young person is alleged to have committed an offence. The measure is extrajudicial – that is, it is not a judicial action – but it is an alternative measure designed to hold a young person accountable for offending behaviour. In this case, notwithstanding the detention of TW, there was no allegation TW committed an offence, there was no offending behaviour, and there was no issue of accountability.

[28] There is no provision in the YCJA that specifically governs access to police records created and kept where no charges were laid and no extrajudicial measures were used. The applicants ask the court to find that access to the records in this case is governed by section 123 (1) of the Act. I disagree. Indeed, my finding that the records in this case do not relate to extrajudicial measures rules out an application for access under section 119 or 123(1) of the Act.

[29] Section 119 (1) sets out the categories of persons who may be permitted access to records, and section 119(2) sets out time periods when access may be granted if the statutory test is met. All of these time periods relate to charges dealt with by way of judicial proceedings or extrajudicial sanctions. In the case at bar, there were no judicial proceedings and no extrajudicial sanctions. Other provisions for access to records in section 119 have no bearing on this case.

[30] Section 123(1) provides 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; or

(b) if the youth court judge is satisfied that access to the record or part is desirable in the public interest for research or statistical purposes.

[31] Thus, access may be granted after the section 119(2) time periods have expired, subject to a more stringent test. On a plain reading, section 123(1) (a) does not open any new avenue for access to records not otherwise dealt with under section 119.

[32] Thus we are left with the following: Police records of the interaction with TW were created and kept for purposes of the YCJA. The interaction did not result in criminal charges or extrajudicial measures. There does not appear to be a process for seeking access to such records specified in the Act. Does this mean that the parties have no ability to access the police records for the important purpose set out in this application?

[33] One possibility that requires consideration is whether there is a legislative gap in the Act regarding access to records which are neither records of extrajudicial measures, nor records which resulted in criminal charges.

[34] Legislation is presumed to be accurate and well-drafted. (Sullivan on the Construction of Statutes, 5th Edition (LexisNexis, 2008), p.172) In Sullivan, the author states that legislative silence with respect to a matter does not necessarily amount to a gap in the legislative scheme. A gap is a “true” gap only if the legislature’s intention with respect to a matter cannot be established by necessary implication. An intention is necessarily implied if (1) it can be established using ordinary interpretation techniques and (2) the implication is essential to make sense of the legislation or to implement its scheme.

[35] In my view, there is no “true” gap. The legislature’s intention with respect to records of the kind generated in this case, can be established by necessary implication.

[36] I begin by noting that sections 119 and 123 are not the only sections in the Act which provide for access.

[37] In my view, read together, these sections permit TW to apply for access to the information in the police records (sections 122 and 124), and to publish the information as required for purposes of the Human Rights Tribunal proceeding, subject to satisfying the court that the purpose of the publication of the information is not to make the information known in the community (s. 110(2) (c)).

[38] However this line of reasoning may not be sufficient.

[39] Disclosure and publication are defined in section 2.

[40] Using these definitions, I find that TW cannot pursue his claim unless he has the ability to disclose the information.

[41] To summarize: Section 124 authorizes the young person to have access to his records.

[42] In S.L. v. N.B., 2005 CanLii 11391, Doherty, J.A. says:

Sections 117 through 129 of the YCJA address access to records held by the youth justice court, the police, or a government department or agency...

[43] It is well established that protecting the privacy of young people dealt with under the YCJA is essential to their rehabilitation.

[44] Looking at the facts of the case at bar, the Court must ask whether Parliament intended to deny a young person access to records where doing so would compromise the proper administration of justice.

[45] The answer lies in determining the legislative intention of the Act as a whole.

[46] The Declaration sets out the policy for the criminal justice system in Canada.

[47] Young persons are entitled to enhanced procedural protection.

[48] I conclude that TW’s ability to access the records necessarily implies his being granted the authority to disclose those records for the purposes of the Human Rights Tribunal Proceedings.

[49] As Blacklock, J. observed in K.F. v. Peel (Regional Municipality) Police Services Board, [2008] O.J. No. 3178,

To turn the concern for privacy, which was used as a shield for the young person, into a sword to be used against him...

[50] Accordingly, I am ordering the following:

1. The applicants are granted access to the police records produced to the Court and marked as Exhibit “A” and “B” in this proceeding;
2. The applicants shall provide copies of the records to the respondents upon receipt;
3. The records may only be used in the proceeding before the Human Rights Tribunal and for purposes connected with that proceedings;
4. The young person shall be identified by the initials T.W. and his Litigation Guardian as M.W. in all documents produced to the respondents, or any other persons, and at the hearing if found to be admissible and admitted into evidence;
5. The records shall be destroyed by all parties at the expiry of the appeal period from any order of the Tribunal in the Human Rights Tribunal proceedings;
6. The records are to be maintained in conditions of strict confidentiality and shall not be reproduced, disclosed or published in any way except as may be required for purposes of the Human Rights proceeding.

Released: April 19, 2017

Signed: Justice M. L. Cohen

[1] Similar reasoning was followed by Justice Ellen Murray in R. v. R.M [2011] O.J. No. 1331(Ont. C.J.)