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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

CITATION: R. v. Gure, 2019 ONCJ 585

DATE: 2019 03 12

COURT FILE No.: Ottawa

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

— AND —

LIBAN GURE

Applicant

Before Justice Jacqueline V. Loignon

Ruling on Application for Disclosure

Mr. J. Fuller…………………………………………………...counsel for the Crown

Mr. G. Barnes...................................................................counsel for Liban Gure

Ms. S. Starkie.………………………………..…..…counsel for the young person

LOIGNON J.:

Application for disclosure of a record pursuant to s. 119, 123 of the Youth Criminal Justice Act.

[1] This is an application pursuant to sections 119 and 123 of the Youth Criminal Justice Act (“the Act”) by Liban Gure for an occurrence report held by the Ottawa Police Service (OPS) and to permit cross-examination in relation to that record. The record concerns N.D.-A., a youth.

Description of record:

[2] The record being sought is held by the Ottawa Police Service and was created by Cst. McKenzie on March 17, 2017, following an interaction with N.D.-A. on March 16, 2017. The record itself details N.D.-A. lying to police and other behavioural issues. No charges were laid in relation to this police interaction, nor were there any consequences or follow-up.

Background:

[3] On May 15, 2017, Ahman Afrah died as a result of injuries sustained during a fall from a 16^th floor apartment balcony. Mr. Gure, the applicant, and Daniel Jean-Charles are charged with manslaughter and aggravated assault in relation to Mr. Afrah’s beating and subsequent death. J.B. and N.D.-A. were charged as youths in relation to the same event. On July 23, 2018, J.B. pleaded guilty to manslaughter while N.D.-A. pled guilty to aggravated assault. Both were sentenced that day.

[4] The adult accused are presently before the Superior Court of Justice for their trials. N.D.-A. is one of the Crown witnesses. It was agreed by the parties, in those proceedings, that cross-examination in relation to the criminal record acquired by N.D.-A. as a result of Mr. Afrah’s death was proper, the appropriate materials having been filed. However, during this cross-examination, it was discovered that the occurrence report generated March 17, 2017 had inadvertently been disclosed. Mr. Gure’s trial was adjourned so that this application could proceed. On the date that the application was argued, the application was dismissed with preliminary reasons, more detailed ones to follow. These are those more detailed reasons.

Position of the parties:

[5] Mr. Gure argues that this report was created in the course of an investigation and therefore is accessible under sections 119 and 123 of the Act. Mr. Gure argues that he cannot make full answer and defence without the materials held by the OPS as N.D.-A. is an important witness and the report therefore necessary to challenge credibility. Counsel for Mr. Gure argues that the probative value of the record is high and there is no prejudicial effect, the witness already having begun to answer questions in relation to the March 16 interaction. Counsel concedes that notwithstanding these answers, there is nothing to suggest that N.D.-A. has waived any privacy interest.

[6] The Crown argues that this court has no authority to order disclosure of the record as it is barred from disclosure by the operation of section 118, and that this prohibition is not displaced by circumstances under either section 119 or 123. Crown argues that the regime under the Act is such that as youth are dealt with more formally under the Act, then different windows of disclosure will open. Where extra judicial measures are taken, then there is an absolute bar. Here, because no action was taken, a form of extra-judicial measures, then the record cannot be accessed, disclosed or be the subject of cross-examination.

[7] N.D.-A. was represented by counsel during the application and supports the Crown position. N.D.-A. asserts her privacy interest in the record held by OPS and argues that the legislative scheme adopted by Parliament acknowledges the particular circumstances of youth and the need for enhanced protections, including in relation to privacy.

Legislation

[8] It is trite to say that the Act was designed recognizing that young people ought not to be treated in the same manner as adults. As a result, there are enhanced protections, both substantive and procedural throughout. The preamble to the Act sets out the general philosophy in interpreting and applying it. Specifically recognized is a shared societal responsibility to address the developmental challenges and needs of young persons. The overall tenor of the Act is on effective rehabilitation and reintegration, where the most significant interventions are reserved for the most serious crimes. Privacy is specifically acknowledged in the declaration of principle at s. 3(1)(b)(iii) in the following manner:

the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

[9] A young person’s right to privacy was referenced by the Supreme Court of Canada in A.B. v. Bragg Communications Inc., 2012 SCC 46. At paragraph 18 of the decision, the Court quoted observations made by Cohen, J. in Toronto Star Newspaper Limited v. Ontario, 2012 ONCJ 27:

The concern to avoid labelling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act. However, it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance.

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17). These considerations apply equally if not more strongly in the case of young persons.

…The protection of the privacy of young persons fosters respect for dignity, personal integrity at a time to be of the young person.

[10] Access to records related to persons dealt with under the Act are therefore strictly safeguarded. In fact, the primary position is one of no access. Section 118 stipulates:

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.

[11] Notwithstanding this general prohibition as well as other restraining sections, the Act also provides a regime whereby certain persons, under certain circumstances and within certain time periods, may access records held by those entitled to retain them. Sections 119 to 123 of the Act set out the regime.

[12] Section 119(2) of the Act specifies various periods of access within which the records must be sought. Essentially, the timeline for access depends on the disposition of the charge. Simply put, the more significant the disposition, the longer the period of access.

[13] Section 119(4) restricts access to records held by authorized parties in relation to extrajudicial measures. The current application is outside of what was contemplated by 119(4). The rationale behind excluding such records is explained in R. v. RL, 2008 ONCJ 29, by Justice Cohen at paragraph 29. Without setting out that paragraph in its entirety, Justice Cohen referred to the inherent reliability of the record, it never having been tested or been the subject of judicial oversight and therefore “the fragile basis upon which to draw any inferences about the history, behaviour or character of the young person”. I note that the record at issue in that decision was one where police commenced an investigation, but did not lay any charges or take any action.

Analysis

[14] It is uncontroversial that the occurrence report at issue is a record held by the Ottawa Police Service, one of the parties specifically recognized under the Act as being authorized to retain and access it. It is also uncontroversial that no charges stemmed from the police interaction described within the record and that no further action was taken.

[15] Does the absence of further action lead to a characterization of extrajudicial measures? To begin with, section 6 of the Act specifically directs that a police officer, before starting any judicial proceedings or taking any other measures, shall consider whether it be sufficient to take no further action, amongst other options. Section 6 is found within Part 1 of the Act under extrajudicial measures.

[16] This issue was considered by Justice Downes in R. v A.B., [2015] O.J. No. 7113. In that case, he considered various occurrence reports where no further action was taken. He was of the view, adopting the reasoning of Justice Weagant in Ontario Human Rights Commission v. Toronto Police Services Board, [2008] O.J. No. 4546, that the approach to be taken is not to attempt to discern what was in the mind of the officer who created the record during an investigation, but rather to take an expansive view of what constitutes a record of an extrajudicial measure and ask whether it was intended to be caught by the section.

[17] In my view, such an expansive view is precisely what is contemplated by the preamble and declaration of principle to the Act. It would make no sense that there be greater access to records because no action was taken, where police are statutorily obligated to consider such an option, than where police issue a caution under section 7 of the Act, an option also found under extrajudicial measures. Indeed, it would be illogical for there to be access here, without any access period limitation, but more serious charges and dispositions have an access window and not be subject to disclosure, barring the criteria in s. 123. Given the regime which contemplates greater access as the disposition increases in significance, it makes sense, in my view, that where no further action is taken by the police and no proceedings instituted, that this is an extrajudicial measure, subject to section 119(4) and its conditions. The Applicant not being one of the parties listed in s. 119(4), disclosure of the report is therefore barred and s. 123 is of no application.

[18] I also adopt Justice Downes comments that alternatively, should the record not be an extrajudicial measure, then there is no provision in the Act that provides for its disclosure.

[19] Having determined that disclosure is impermissible, any cross-examination in relation to the report is also impermissible. (R. v. Sheik-Qasim, 2007 CanLII 52983 (ON SC), [2007] O.J. No. 4799)

[20] The Application is dismissed.

Date: February 22^nd, 2019

Released: March 12^th, 2019

Signed: Justice Jacqueline V. Loignon