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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: 2020-12-02

Court File No.: Central West Region 998 19WYD 3662

Between:

Her Majesty the Queen

— and —

C.S., a young person

Before: Justice J. De Filippis

Heard on: November 26, 2020

Reasons for Ruling released on: December 2, 2020

Counsel

Mr. T. Morris — counsel for the Crown

Mr. V.J. Singh — counsel for the young person

Decision

De Filippis, J.:

Application for Access to Youth Records

[1] This is an application by the defendant, C.S., for access to youth records involving the complainant, S.C.

[2] The defendant is charged with committing these offences against the complainant on various dates between August 1, 2018 and February 25, 2019:

• uttering threats of bodily harm and death;
• assault x 4;
• assault causing bodily harm;
• assault with a weapon x 2;
• forcible confinement;
• making child pornography by recording their sexual activity without her consent;
• failing to comply with a YCJA disposition;
• sexual assault;
• pointing a firearm;
• possession of a weapon for a dangerous purpose;
• possession of a prohibited weapon;
• possession of a weapon without a licence;
• careless storage of a firearm;
• use a firearm in the commission of an offence; possession of a loaded prohibited firearm;
• possession of a prohibited weapon while prohibited from doing so.

Procedural History

[3] These charges are governed by the Youth Criminal Justice Act (YCJA). The matter has been before the court for some time, in part, due to the pandemic. Previous trial dates were converted to a date for a Garofoli motion, with trial dates to follow. The Defence asked to adjourn the Garofoli motion because of disclosure issues. I granted that adjournment request. In doing so, I set this date for a disclosure motion, a date in January 2021 for a motion for leave to cross-examine the affiant who prepared an Information to Obtain (ITO) (with a timetable for counsel to serve and file materials) and trial dates in March 2021.

[4] Notwithstanding this history, the material for the present application was filed three days before the return date, without compliance with the YCJA provision requiring five days' notice to the complainant. As such, unless I dispense with the notice requirement, the present motion would have to be adjourned in whole or in part. When I questioned Defence counsel about this, I was provided with an affidavit by his assistant, Ms. Galbraith. She had primary responsibility for vetting the voluminous disclosure material and explained why she was unable to do so in a timely manner. I accept that explanation.

[5] The defendant and complainant are now adults. The defendant faces other child pornography charges as an adult. That trial will also be conducted by me, in July 2021.

Background Facts

[6] The complainant reported the allegations to the police in July 2019. That same month the ITO was prepared for a search warrant that was executed at a residence. The affiant's notes reveal that in preparing the ITO, she read "some previous incidents involving the accused and victim [i.e. complainant]". The ITO references 31 occurrence reports.

[7] Subsequently, in October 2019, the complainant was found guilty of assault, uttering threats x 2, and failure to comply with a release order. The synopsis for the assault charge states that the complainant is "well known to the Niagara Regional Police and has been involved in [redacted] incidents between 2011 and May 2020. The Defence seeks access to any occurrence reports about these incidents.

Grounds for the Application

[8] Three reasons are offered for the request for the occurrence reports:

• To establish the affiant failed in her duty to make full, fair and frank disclosure in the ITO;
• To show the complainant has a history of violence and dishonesty in aid of a scheduled motion for leave to cross-examine the affiant;
• To show the complainant has a history of violence and dishonesty in aid of a plea of self-defence at trial.

Disclosure Already Provided

[9] This disclosure motion was originally framed broadly. However, in oral argument, I learned that the Defence now has, or will soon receive, the following:

• The occurrence reports about the charges for which the complainant was found guilty in October 2019;
• The 31 occurrence reports referenced in the ITO (of which five relate to interactions between the defendant and complainant and 26 are about the defendant and others).
• Any occurrence reports about the complainant and defendant that were created after they became adults.

The Legal Issue

[10] What remains to be determined is the Defence request for any and all other occurrence reports about the complainant that may have been created while she was a youth. In this regard, the Defence relies on R v Greer 2020 ONCJ 67.

[11] In Greer, Justice Freeman made these comments:

[63] Aside from s. 119(4) all other youth records may be disclosed, provided that the requisite tests are met. This includes situations where the young person has been acquitted…..

[64] If Parliament did not prohibit the disclosure of youth occurrence records after a youth was acquitted, and therefore not guilty in law, why is it that untested allegations are not disclosable, provided the officer did not note that extrajudicial measures were employed? In my view, untested allegations, where there remains at least the possibility of truth to the allegations, are no more deserving of protection than allegations that have been tested in a court and the young person found innocent. Indeed, arguably, the greatest protections should be reserved for those situations where a young person has been found not guilty, yet such records are disclosable under s. 119 (2)(b) or, s. 123 if the access period has expired.

[74] The proper administration of justice would surely include a criminal trial where Charter rights are respected, and the privacy rights of a young person must yield to the fair trial rights of an accused. Such rights would include the right to a fair trial including disclosure of highly relevant material that would assist an accused to make "full answer and defence." Records that reveal the complainant potentially has a disposition for violence would clearly be vitally important to the defence and the denial of these records would be contrary to the interest of the proper administration of justice. Similarly, where the record discloses allegations that may bear upon the credibility of the complainant, the proper administration of justice requires that the defence be provided with such evidence. Clearly, an accused has a "valid and substantial interest" in all such records.

Court's Analysis

[12] In my respectful opinion, this reasoning is inconsistent with the intent and purpose of the YCJA with respect to youth records. In my view, the relevant provisions were properly interpreted and applied by Justice Downes in R v A.B. [2015] O.J. No. 7113 and Justice Caponecchia in R v O.Y. 2020 ONCJ 466.

Definition of Youth Records

[13] The starting point for this discussion is the fact that there can be no access to youth records unless specifically authorized by Part 6 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]

[14] Pursuant to sections 114-116 of the YCJA, youth records fall into three general categories: (1) the records of a youth court, (2) police records, including documentation of extrajudicial measures and records kept by the RCMP, and (3) government records.

The Presumption of Non-Disclosure

[15] In A.B., supra, Justice Downes, noted that,

[8] Under s. 118, access to any records relating to young people is presumptively restricted. Depending on the type of record, however, access may be granted to specified groups of people, for certain purposes, within an "access period" outlined in s. 119(2). If the relevant access period has expired, access may still be granted upon satisfaction of the three-part test outlined in s. 123, including that the access sought is necessary "in the interests of the proper administration of justice." S. 119(4) provides for limited access to records reflecting extrajudicial measures (not sanctions).

[16] In O.Y., supra, Justice Caponecchia, added these important comments:

[10] …..The definition [of youth records in section 2 of the YCJA] 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…..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.

[21] The presumptive privacy of youth records is subject to access by certain individuals, for limited purposes, and for a specified period of time. This is set out in section 119 of the YCJA. This is discussed in O.Y., supra:

[13] Sections119(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."

[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.

Extrajudicial Measures

[17] In A.B., supra, Justice Downes determined that the occurrence reports before him were records of extrajudicial measures taken by the police under s. 6 of the YCJA and, thus, disclosure was precluded by s. 119(4), regardless of how relevant the document may be to the Applicant's defence.

Rejection of the Greer Approach

[18] The Crown argues that Greer is wrong and ought not to be followed. I agree for the reasons given by Justice Caponecchia and O.Y. supra:

[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.

Application of Section 123

[19] I am also of the opinion that the present application must fail even if section 123 applies. I repeat that the YCJA provides for a presumptive rule of non-disclosure with certain exceptions during the periods described in section 119 or pursuant to the test set out in section 123. In this case, that stringent test has not been met. There is nothing to suggest that the defendant has a "valid" interest in the occurrence reports or that his access to them is "necessary" to the proper administration of justice.

Speculative Nature of Defence Arguments

[20] The grounds offered by the Defence for access are speculative and would not assist me in deciding the Charter and trial issues that are specified. Untested allegations of violence and dishonesty – assuming the complainant admits to such when confronted with the reports – provide weak support for a finding that the defendant committed some of the offences with which he is charged because he was acting in self-defence. By the same token, such reports do not undermine the ITO. The duty to make full, fair, and frank disclosure refers to relevant information. An ITO must not be cluttered with information that cannot assist the judicial officer in deciding if the Order should issue.

Disposition

[21] The application for access to the occurrence reports in question is dismissed.

Released: December 2, 2020

Signed: Justice J. De Filippis