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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Ontario Court of Justice

Date: October 16, 2020

Court File No.: Brampton Info.15-11976, Sup. Crt. File 1560/19

Between:

Her Majesty the Queen

— and —

O.Y.

Before: Justice S. Caponecchia

Application to Access Youth Court Records

Pursuant to s. 118, 119 and 123 of the Youth Criminal Justice Act

Heard on: October 1, 2020

Reasons released on: October 16, 2020

Counsel

Ms. A. Gauthier — counsel for the Crown

Mr. H. Saini — counsel for the accused O.Y.

Ms. J. Birenbaum — counsel for the complainant V.K.

Ms. J. Orabovic — counsel for Peel Regional Police

Decision

CAPONECCHIA J.:

Introduction

[1] O.Y. is charged with two counts of assault and sexual assault against his former partner and mother of his children, V.K. The offences are alleged to have occurred during their relationship between 2011 and 2015. A jury trial is scheduled to take place in February 2021. A third-party records application is scheduled for the end of November 2020.

[2] One aspect of the third-party records application pertains to police records that involve V.K. as a complainant in a sexual assault investigation which took place in 2011. The suspect in that investigation was a youth, as was V.K. The defendant is aware the police records exist because there is a reference to the investigation in one of the complainant's interviews in respect of O.Y. In the interview V.K. states that she was raped while intoxicated in high school. When asked by the interviewing officer what the outcome of the investigation was, V.K. explained that it was her understanding that there wasn't enough evidence and witnesses to confirm what happened. The interviewing officer responds by stating that his understanding was no charges were laid because "it came off unfounded." No charges were laid either against the suspect youth in 2011, nor V.K. for public mischief.

[3] Given the records relate to a youth, this application is before me as a Youth Court Judge pursuant to Part 6 and ss. 14(1), 14(6) of the Youth Criminal Justice Act (YCJA). The contents of the 2011 police investigation relate to prior sexual activity of the complainant and this application is to grant the Superior Court trial judge access to the records for the purpose of deciding an application for production pursuant to s. 278.2 of the Criminal Code of Canada.

[4] This application was originally filed on January 30, 2020. It was adjourned for a Crown response. The application did not proceed as a result of the close of courts in March due to the COVID pandemic. With the consent of all parties, this Application was heard on October 1, 2020 via video conference.

Position of the Parties

[5] The Applicant's first position is the YCJA does not apply because the records are not records within the meaning of s. 2 the Youth Criminal Justice Act (YCJA). If the YCJA does apply, Mr. Saini's second argument is the Superior Court should be given access to them pursuant to s. 123 of the YCJA. If the YCJA applies, the Applicant also submits that only Peel Police and the suspect youth in the 2011 investigation have standing on this application. The suspect youth in the 2011 investigation has refused multiple attempts at service of this application.

[6] The Crown, Peel Region Police and counsel for the complainant submit that access to the 2011 records is governed, and prohibited, by the YCJA. Should this court disagree, the Crown and counsel for the complainant submit that the Applicant has not satisfied the requirements for access set out in s. 123. Peel Regional Police takes no position as to whether s. 123 has been satisfied by the Applicant or whether the records should be released to the Superior Court for a s. 278.2 motion. The Crown and counsel for the complainant submit they have standing on this application.

[7] The parties all agree that it is open to me to review the records.

[8] On October 1, 2020 I ruled that the Crown and complainant have standing on this application. These are my reasons, along with my reasons on the merits of the application.

Analysis

[9] There is no access to youth records unless specifically authorized by Part 6 of the YCJA. The threshold issue on this application is whether the materials sought are "records" as defined by s. 2 of the YCJA. Section 2 of the YCJA defines a "record" as:

… anything 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. [emphasis added]

[10] Based on the definition of a record in s. 2, I am satisfied that the records in this case are captured by s. 2 of the YCJA because both V.K. and the person she alleged sexually assaulted her in 2011 were youths when police investigated the allegation. Moreover, the 2011 investigation was for an offence that could be prosecuted under the YCJA. My interpretation of s. 2 is informed by these salient factors and two additional considerations:

1. A plain reading of the s. 2. The definition is not confined to only those records where charges are laid and a prosecution is commenced. Rather, it includes records pertaining to an investigation that could be prosecuted.

2. Protection for the privacy of youth accused of having committed a criminal offence. If I were to conclude differently, a young person who is prosecuted would be afforded greater privacy protection under Part 6 of the YCJA than youths who are merely suspected, investigated and not charged. Surely a youth who is accused of a criminal offence and not charged is entitled to as much, if not more privacy, than one who is charged.

[11] The next issue for me to decide is whether the YCJA provides access to the records. Section 118 of the YCJA prohibits access to any youth records unless specifically authorized. In other words, access to any records relating to young people dealt with under the YCJA is presumptively restricted. That said, some records may be accessed by certain individuals, for limited purposes, and for a specified period of time.

[12] Section 119(1)(q) permits an individual like the Applicant who is charged with a criminal offence with a means by which to access three categories of records in order to make full answer and defence. The youth records that are potentially accessible to any defendant are: court records (s. 114), police records (s. 115) and government records (s. 116). In this case, there is no dispute that the records which the Applicant seeks access to are police records within the meaning of s. 115 of the YCJA.

[13] Sections 119(2)(a-j) qualifies the type of youth court records that may be accessed by a defendant in order to make full answer and defence. Notably, sections 119(2)(a-j) limit access to records that relate to matters where charges were laid. Access is restricted to matters that have been finally disposed of, be it by extra-judicial sanction, dismissals, acquittals, stays and findings of guilt. In general terms, the access period is considerably shorter where the person was acquitted or given a discharge than if found guilty or given a more severe sentence.

[14] It is worth noting that s. 119(4) specifically limits access to police records where no charges are laid and extra-judicial measures were utilized by police. Section 119(4) restricts access to police records pertaining to extra-judicial measures to a restricted class of persons and for very specific purposes. A defendant, such as the Applicant in this case, is not amongst the enumerated class of individuals entitled to access records in respect of extrajudicial measures.

[15] Equally significant, s. 119(2) does not provide for access to records in cases where charges have been laid and are outstanding. Nor does s. 119(2) provide for access to records in case such as this one, where an investigation took place and no charges were laid.

[16] Section 123 goes on to provide a defendant with the ability to access the same records in s. 119(2) after the accessing periods have expired. Where the relevant access period has expired, access may only be granted upon satisfaction of a three-part test outlined in s. 123, including that access is necessary "in the interests of the proper administration of justice."

[17] In this case the Applicant submits that if access to the records is governed by Part 6 of the YCJA, then he requires them to make full answer and defence pursuant to s. 119(1)(q) and the criteria for access in s. 123 have been satisfied because the records may disclose information about the complainant's credibility. More specifically, the defence submits the records are capable of impugning the witness's credibility by showing she fabricated a sexual assault allegation in 2011.

[18] While I find that access to the records is governed by the YCJA for the reasons previously indicated, I am not satisfied that Part 6 of the YCJA permits me to grant access to the 2011 police investigation. The materials meet the definition of a record in s. 2 and s. 115, however sections 119 and 123 of the YCJA do not provide an avenue for the Applicant to seek access to them given no charges were ever laid following the police investigation. This limitation is consistent with other restrictions in Part 6 of the YCJA for accessing records. For example, a defendant cannot access records pertaining to extra-judicial measure taken by police pursuant to s. 119(4), regardless of how relevant they may be to an Applicant's defence.

[19] This result is also consistent with the following two further observations. Firstly, there are no provisions for accessing police records that contain highly sensitive private information involving a youth who was a witness or victim in an different criminal investigation, the subject of a mental health intervention by police, nor police records that document police action prompted by parents or schools to assist with youth displaying behavioural issues that may or may not include criminal misconduct and no charges were laid. Second, section 125(2) of YCJA specifically provides for the disclosure of police records to a defendant at the discretion of the Crown where the record is in respect of a witness as a young person dealt with under the YCJA. However, pursuant to s. 125(8) the discretion is limited to the same dispositions and time frames set out in s. 119(2). It therefore appears that Part 6 of the YCJA does not provide a defendant with access to police records pertaining to a witness when they were dealt with as a young person and either no charges were laid or where charges have yet to be disposed of.

[20] I am aware that some of my colleagues have endeavoured to fill the gap in the legislation using the "valid and substantial interest" test in s. 123 to deal with police records where no charges were laid and for which there is no access period in s. 119 or elsewhere in YCJA. With the greatest of respect to my colleagues who have done so, I take a different view. I find, as Justice Downes did, that s. 123 only provides an avenue to access the same records identified in s. 119(2) after the access periods have expired. Section 123 does not apply to records for which, as in this case, there is no defined access period under s. 119, or anywhere else in the YCJA.

[21] This result is informed not only by a plain reading of the legislation, but the underlying principles of the YCJA as expressed in s. 3, the Declaration of Principles. It is trite to say that the YCJA was designed recognizing that young people ought not to be treated the same as adults. Section 3(1)(b)(iii) assures young persons of enhanced procedural protection to ensure that they are treated fairly and that their rights, including their right to privacy, are protected. Section 3(1) mandates that the Act must be liberally construed to ensure that young persons are dealt with in accordance with these principles. A young person's diminished moral blameworthiness and reduced level of maturity are also recognized among the guiding principles of the Act.

[22] Justice Doherty described Parliament's clear intention in the enactment of s. 119 and 123 of the YCJA as follows, in S.L. v. N.B, [2005] O.J. No. 141, at para. 42:

Those provisions demonstrate beyond peradventure Parliament's intention to maintain tight control over access to records pertaining to young offender proceedings whether those records are made and kept by the court, the Crown, or the police. Generally speaking, access to those records is limited to circumstances where the efficient operation of the young offender system, or some other valid public interest is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come into conflict with the law. Different records are also treated differently. Some particularly sensitive records such as medical reports are available only in limited circumstances to specifically identified persons or groups (e.g. see s. 119(6)).

[23] I also concur with a further observation made by Justice Downes. Access to police records by a defendant related to a witness when they were a youth and not contemplated in either ss. 119 or 123 of the YCJA, may still form the subject matter of a different variety of application, such as a third party record application, or, an application for Charter relief from the impact of the YCJA, both of which must be brought before the trial court. I would expect that a determination of any such potential applications would of course, include a full consideration of the provision and principles of the YCJA, the privacy interests of the witness and the Applicants right to make full and answer and defence.

[24] This result is further informed by two appellate authorities. In R. v. Essol, 2019 ONCA 918, the defendant was an adult charged with sexual assault. Mr. Essol sought access to police records involving the complainant in a different case involving a youth who was alleged to have sexual assaulted the complainant. The charges were disposed of by way of extrajudicial measures. The Youth Court judge dismissed Mr. Essol's motion to access the youth records, holding that he lacked the jurisdiction to do so pursuant to s. 119(4). The defendant pursued a constitutional challenge to the legislation and a third-party records application before the trial judge. The third-party records application was dismissed, and the constitutional challenge was rendered moot.

[25] In the case of Jerace v. British Columbia (Provincial Court), 2019 BCCA 320, the appellate court took the following view with respect to the interplay between s. 123 of the YCJA and the third-party records regime. At paragraph 29, the Court held as follows:

Access to youth justice court records is governed by the YCJA. An accused who seeks access to the complainant's youth justice court records for use in a prosecution involving one of the offences listed in s. 278.2(1)(a) must comply with both the provisions governing access to youth justice court records in the YCJA and the requirements of the Mills regime. The accused must bring two discreet pre-trial applications. The first is an application to a youth justice court judge to obtain access to the youth record. If the youth justice court judge decides that the test for access under the YCJA has been met, the judge forwards the records under seal to the trial court which will then decide, pursuant to the provisions of the Mills regime, whether the documents will be produced to the accused for use at trial: R. v. T.F., [2010] O.J. No. 6198 (O.C.J.).

[26] I find the approaches in Essol and Jerace to be instructive. If the police records in this case related to any of the youth court dispositions set out in s. 119(2), I could be persuaded to adopt the approach in Jerace. Instead, as in the case of Essol, I find I have no jurisdiction to order access to the records being sought.

[27] Given this result, I decline to review the records in question because access to them is barred pursuant to ss. 118 and not contemplated by operation of 119, 123 or any other section in Part 6 of the YCJA. The records shall be sealed and made Exhibit 2 on this application. They shall not be accessed without a further order of a court of competent jurisdiction.

Standing

[28] The Applicant's first position is the YCJA does not apply and the pending s. 278.2 governs production of the records. According to Mr. Saini, the complainant and Crown only have standing at the third-party records motion.

[29] The Applicant's second position is that if the YCJA applies, the Crown does not have standing. I have found that the YCJA applies and I am also satisfied that the Crown has standing on an application to access youth records made by a defendant pursuant to s. 119(1)(q) and s. 123 of the YCJA. Other than applying for a subpoena, counsel for the Applicant could not point to any defence application that takes place in open court during an ongoing prosecution in the absence of the Crown.

[30] The Applicant also submits that if the YCJA applies, the complainant does not have standing on this application. Mr. Saini relies on the fact that neither s. 119 nor s.123(3) of the YCJA contain notice provisions that would entitle the complainant to standing. It is accurate to observe that s. 119 does not require notice to be served on a youth where a defendant applies to access youth records within the relevant access periods set out in s. 119(2). It is also correct to say that after the access periods have expired, a defendant who is seeking access to youth records is required to give notice to parties pursuant to s. 123(3). Those individuals entitled to notice pursuant to s. 123(3) is a "young person to whom the record relates and the person or body that has possession of the record."

[31] For the reasons already indicated, I found the YCJA applies in this case and that access to the records in questions is not provided for in Part 6. Therefore, the presence or absence of any notice provisions for youth records pertaining to youth dispositions is of limited assistance. The records in question are police records held by Peel Regional Police over which the complainant enjoys a reasonable expectation of privacy. The records involve a sexual assault allegation made by V.K. nine years ago when she was a youth in high school. Police did not lay a charge. V.K.'s position is she was sexually assaulted. V.K. has standing in the pending s. 278.2. Given the variety of approaches taken by other courts to the unique legal issues engaged in this case, the heightened privacy interests in the records and the labyrinth that is Part 6 of the YCJA, I exercise my discretion to permit counsel for the complainant to make written and legal representations on this Application. I am satisfied there is no prejudice to the Applicant in doing so.

Conclusion

[32] Part 6 of the YCJA provides for circumscribed access to select youth records by defendants charged with a criminal offence who assert they require them to make full answer and defence. Access to police records is governed by s. 119, s. 123 and 125(2). These sections do not contemplate access to police records where no charges were laid following an investigation. Therefore, this application to access Peel Police records pertaining to a 2011 sexual assault investigation involving a suspected youth and V.K. as a complainant, must fail.

[33] A copy of this ruling will be made Exhibit 3 on this Application and will be included in a sealed envelope containing the records marked Exhibit 2.

Released: October 16, 2020

Justice Sandra Caponecchia