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 Identity of offender not to be published.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 Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

DATE: October 29, 2021 Toronto

ONTARIO COURT OF JUSTICE Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended.

BETWEEN:

ANTONIO DE AMORIM, Applicant

and

W.C., R.C. and Toronto Chief of Police or Delegate, Respondents

and

HER MAJESTY THE QUEEN

Before Justice Sheilagh O’Connell

Heard on August 24, 2021, Ruling Released on October 29, 2021

Counsel: Daniel Lamberto Ambrosini........................................................................ for the Applicant Jane Stewart, Justice for Children and Youth......................................................... for W.C. Gail Glickman.............................................................................. for Toronto Police Services Debra Moskovitz............................................................................. Crown Attorney’s Office

O’CONNELL, J.:

1. Introduction:

[1] The Applicant, Antonio De Amorim, has brought an application under the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”) seeking access to the police records that involve a youth, W.C., in relation to an incident that occurred on October 23, 2020.

[2] On the evening of October 23, 2020 at approximately 7:00 PM, while walking home on a residential street in Toronto, Mr. De Amorim was struck in the chest by a pellet fired from a BB gun, also known as an air soft gun.

[3] Mr. De Amorim thought that he may have been struck by a rubber bullet and took cover. He took out his cellphone and began to take a video recording of the surrounding residential area. He observed someone on the roof of a home with a long object appearing to be a BB gun.

[4] Mr. De Amorim walked to the closest police station to report what had occurred.

[5] Police officers from Toronto Police Services investigated and attended at the home identified in the video. The BB gun in question was apprehended. The police later informed Mr. De Amorim that no charges would be laid.

[6] Mr. De Amorim may have experienced a minor physical injury from the shot. This is not clear. According to the police, he told them that he was not injured [1]. However, it was no doubt a shocking and frightening experience. He did attend the hospital after the experience and sought medical assistance.

[7] Mr. De Amorim retained a lawyer to determine why no criminal charges were laid. He wishes to pursue a private prosecution if the police are not going to lay criminal charges.

[8] Mr. De Amorim’s counsel communicated with the police. It was determined that the person who shot Mr. De Amorim with the BB gun was a fifteen year old male youth.

[9] In email correspondence between the police and Mr. De Amorim’s counsel attached to this application, the police advised that the supervisor and officers involved in the investigation interviewed both the youth and spoke to the youth’s father on scene. The BB gun was surrendered voluntarily. The officers concluded after a thorough investigation that no charges would be laid.

[10] Mr. De Amorim’s counsel was able to ascertain the family surname through his own research and contacted the young person’s father. The father acknowledged what had occurred and stated that his son was extremely remorseful for what had happened and would really appreciate the opportunity to apologize to Mr. De Amorim in person for this unintentional incident.

[11] The parties all agreed that it was open for me to review the records. The police records in question contained a police occurrence report, including general occurrence information, and the notes of the investigating officers.

2. The Issues:

[12] It is not disputed that the police notes and occurrence report are “records” within the meaning of sections 2 and 115 of the Act.

[13] The threshold issue in dispute is whether the occurrence report and notes sought by Mr. Amorim are records that contain “extrajudicial measures” under the Act, that is, records relating to an incident in which no criminal charges are laid but where extrajudicial measures are used by the police.

[14] Section 119(4) of the YCJA specifically limits access to police records where no charges are laid, and extrajudicial measures are used. Mr. De Amorim does not fall into any category of individuals entitled to access youth records that contain extrajudicial measures and is therefore prohibited from accessing this type of record under the Act.

[15] If the police occurrence report and notes are not a record of extrajudicial measures or are silent in that regard, then the next issue is whether Mr. Amorim is entitled to the records pursuant to any other provision of the YCJA or law.

3. The Position of the Parties:

The Applicant:

[16] Mr. Amorim submits that he has a valid and substantial interest in the records that would further the administration of justice, and that he is entitled to the records under section 119(1)(s) or section 123 of the YCJA.

[17] He states that he does not know whether the police engaged in any extrajudicial measures in this matter. He asserts by obtaining access to the police records he will be able to determine whether these measures were taken, the nature of the investigation, including who was involved in the incident, and why the officers decided not to pursue charges. This will assist him in pursuing or determining to pursue a private prosecution.

[18] He submits that whether or not W.C. is a youth, it is not in the interests of justice to have Toronto residents who are walking home to be shot from persons sitting on the rooftops of their homes.

The Young Person, W.C.:

[19] W.C. is opposed to the release of any police records to Mr. Amorim. He submits that the records in question relate to extrajudicial measures taken by the police and Mr. Amorim is prohibited from access under section 119(4) of the YCJA.

[20] In the alternative, if the records are silent regarding any extrajudicial measures taken by the police, they are still not disclosable under the statutory framework of the YCJA under any circumstances or in law. W.C.’s privacy interests prevail over Mr. De Amorim’s wish to pursue his own private prosecution.

The Other Interested Parties:

[21] The Crown, Ministry of the Attorney General (Crown Law Office-Civil) and Toronto Police Services were served with the application but took no position regarding the relief sought. However, counsel did attend and provided some helpful assistance to the court.

[22] Counsel for Toronto Police Services also provided the sealed copies of the police records of this incident for the court’s private review in chambers.

4. The Law and Governing Principles:

[23] The YCJA contains a comprehensive statutory scheme which governs the retention and access to youth records. Youth records protected by the YCJA are presumptively inaccessible. There is a strong presumption against access.

[24] Part 6 of the YCJA protects the privacy of young persons dealt with under the Act. Under Part 6, publication of information that would identify a young person dealt with under the Act, and access to youth records created or kept for the purposes of the Act, are strictly limited.

[25] It is now well-settled law that the regime under Part 6 of the Act is the sole route through which access to youth records can be gained. There is no separate scheme for access to youth records even when sought for civil litigation or private prosecution. See L. (S.) v. B. (N.), 2005 ONCA 790, 2005 CarswellOnt. 1417; [2005] O.J. No. 1411, 12 C.P.C. (6th) 34; 196 O.A.C. 320 (Ont. C.A.), at paragraph 55 of that decision.

[26] The rationale for the protection of youth records is understandable. A primary goal of the YCJA is to limit the stigmatization that attaches to a young person who is being investigated by the police and is being accused of committing a criminal offence or has committed a criminal offence.

[27] This goal is consistent with the presumption of diminished moral blameworthiness and culpability that the Supreme Court of Canada identified as a fundamental principle of youth criminal justice in R. v. B. (D.), 2008 SCC 25 [2]. Speaking for an unanimous court, Justice Abella states the following at paragraph 41 of that decision:

“…namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.” [par. 41]

[28] As well, in accordance with Canada’s international obligations, the YCJA affords young people special guarantees in recognition of their diminished moral blameworthiness or culpability. (See s. 3 of the Act). The UN Convention on the Rights of the Child recognizes the “physical and mental immaturity” of young people and their need for “special safeguards in care, including legal protection”. Rule 8 of the UN Standard Minimum Rules for the Administration of Juvenile Justice provides:

“The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling. In principle, no information that may lead to the identification of the juvenile offender shall be published.”

The Meaning of ‘Youth Records’:

[29] Section 2 of the YCJA defines “record” as including:

“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.]

[30] There are three categories of records that are set out in sections 114 to 116 under Part 6 of the Act:

1. Section 114 are the records kept by the youth justice court and can include the charging information, findings of guilt, sentencing transcripts, any pre-sentence reports, and exhibits. The exhibits can contain medical records and mental health assessments as defined under the Mental Health Act.
2. Part 115 deals with records that may be kept by the police, including documentation of extra judicial measures, police occurrence reports, police notes of an investigation into an alleged offence, fingerprints or photographs of the young person and records kept by the RCMP. Sub-section 115 (1.1) provides that “the police force shall keep a record of any extrajudicial measures that they use to deal with the young person.”
3. Part 116 refers to records that may be kept by any department or agency of the government of Canada, including the Attorney General and the Crown for use in any proceedings against the young person, for the purpose of administering a youth sentence or an order of the youth justice court, and for the purpose of considering whether to use extrajudicial measures, among other purposes.

[31] As noted, in the case before me, the records in question fall under section 115, namely police records, and specifically the police occurrence reports, the officers’ notes of the police investigation, and any documentation of extra-judicial measures.

The Meaning of ‘Extrajudicial Measures’:

[32] Section 2 of the YCJA defines “extrajudicial measures” 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.” [3].

[33] Section 4 of the YCJA sets out the purpose and principles of extrajudicial measures This section highlights the importance of these measures under the legislation. They are as follows:

Extrajudicial Measures

Declaration of principles

4 The following principles apply in this Part in addition to the principles set out in section 3:

(a) extrajudicial measures are often the most appropriate and effective way to address youth crime;

(b) extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour;

(c) extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence; and

(d) extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour and, if the use of extrajudicial measures is consistent with the principles set out in this section, nothing in this Act precludes their use in respect of a young person who

(i) has previously been dealt with by the use of extrajudicial measures, or

(ii) has previously been found guilty of an offence.

[34] Following an incident involving a young person, subsection 6(1) of the YCJA provides that police officers are required to consider using extrajudicial measures before deciding to pursue criminal charges against a young person. This section states as follows:

Warnings, Cautions and Referrals

6 (1) A police officer shall, before starting judicial proceedings or taking any other measures under this Act against a young person alleged to have committed an offence, consider whether it would be sufficient, having regard to the principles set out in sections 4 and 4.1, to take no further action, warn the young person, administer a caution, if a program has been established under section 7, or, with the consent of the young person, refer the young person to a program or agency in the community that may assist the young person not to commit offences.

[35] The legislative history of “extrajudicial measures demonstrate that extrajudicial measures are a means to hold young persons accountable for their behaviour yet keep young people out of the youth criminal justice system.” See R. v. C.M., 2010 ONSC 2177 (S.C.J.), per Justice Thorburn, at paragraph 22.

[36] As stated by the authors of the Legislative Summaries of Bill C-3:

“Out of court responses, such as police warnings, cautioning, referral to community programs, apologies to victims, acknowledgment and reparation…are seen as providing more meaningful consequences for much youth crime, as well as being faster and less costly than interventions through the formal court system.” [4]

Access to Youth Records:

[37] Access to youth records are governed by sections 118, 119 and 123 of the Act.

[38] Section 118(1) is central to the statutory scheme controlling access to youth records and reads as follows:

“Except as authorized or required by this Act, no person shall be given access to a record kept under section 114 to116, 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.”

[39] As Justice Doherty states for the Ontario Court of Appeal in L. (S.) v. B. (N.), supra, “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 even more emphatic by section 138 which makes it an offense to violate section 118.” [Par. 45.]

[40] Section 119 permits access to certain youth records to specific categories of persons for prescribed periods of time, or “access periods”.

[41] Subsection 119 (1) sets out the specific persons that are permitted access to the youth records defined in the Act until the end of any access period prescribed under section 119 (2).

[42] Subsection 119 (2) prescribes the access periods to the youth records set out under this section and specifies when the access period expires. All the records specified under this section relate to matters where criminal charges have been laid. The length of the access period varies depending on the outcome of the charge. The more serious the disposition, the longer the period of access. [5]

[43] In R. v. W. (Z.), 2016 ONCJ 425, Justice Marion Cohen explains the rationale for the access periods under section 119 at paragraph 25 of her decision,

“The delineation of an access period governing access to youth court records is consistent with the presumption of diminished moral blameworthiness for young persons upon which the criminal justice system for young persons is based. The inaccessibility of the youth records protects the youth from the long-term negative consequences of his or her youthful offending behavior and is in keeping with the rehabilitative intentions of the Act.”

[44] As noted, it is clear that all categories of records listed under section 119(2) relate to records in which criminal charges have been laid against the youth. There is no provision in section 119 (2) for records in which no criminal charges have been laid.

[45] Subsection 119 (4) specifically addresses access to youth records where no criminal charges were laid and where extrajudicial measures were used. Records concerning extrajudicial measures have no prescribed access periods, but section 119(4) restricts access to those records to very specific persons for very specific purposes. They are as follows:

Extrajudicial measures

(4) Access to a record kept under section 115 or 116 in respect of extrajudicial measures, other than extrajudicial sanctions, used in respect of a young person shall be given only to the following persons for the following purposes:

(a) a peace officer or the Attorney General, in order to make a decision whether to again use extrajudicial measures in respect of the young person;

(b) a person participating in a conference, in order to decide on the appropriate extrajudicial measure;

(c) a peace officer, the Attorney General or a person participating in a conference, if access is required for the administration of the case to which the record relates; and

(d) a peace officer for the purpose of investigating an offence.

[46] As noted, Mr. De Amorim is plainly not included in any of the categories of individuals above entitled to access to youth records in respect to extrajudicial records kept under sections 115 and 116 of the Act.

[47] If the relevant access period to records under section 119 (2) of the Act has expired, then access to the youth record may still be granted upon satisfaction of the three-part test under section 123 of the Act. This section reads as follows:

Where records may be made available

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 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.

Police notes and occurrence reports where no criminal charges have been laid:

[48] Can police notes and occurrence reports where no criminal charges have been laid against a youth be considered records of extrajudicial measures, and therefore subject to the limitations and restrictions on access under section 119 (4) of the Act?

[49] If not, or if the records are silent with respect to whether any extrajudicial measures have been taken, are police notes and records where no criminal charges have been laid subject to the access provisions under sections 119 and 123?

[50] There is some division in the case law regarding these issues.

[51] In R. v. C.M., 2010 ONSC 2177 (S.C.J.), during a trial of a youth who was charged with attempted murder and other serious offences, the Crown sought disclosure of police notes and occurrence reports of an earlier unrelated investigation into an alleged offence by a youth where no charges were laid or considered by the police. The Crown sought the police notes and occurrence reports in the unrelated incident to establish a relationship between the youth and the co-accused at trial.

[52] Justice Thorburn held that the notes were not a record of extrajudicial measures, and sections 119 had no application. She states the following at paragraphs 23 and 24 of her decision:

“23. In this case, there was an investigation of a serious charge of possession of a firearm and of an allegation that the Respondent was not in compliance with the terms of his bail conditions. No firearm was located and the Respondent was found at the location in question. On the cover page of his notes the officer notes that "no firearm located no charges". It is clear from the officer's notes that the officer did not consider commencing judicial proceedings to address either of the two areas of investigation nor is there any evidence to suggest there was any basis to commence judicial proceedings or alternatives thereto. The investigations in this case were more akin to occurrence reports.

24. Therefore, sections 119 and 123 of the YCJA and the time limits for disclosure of documents contained therein do not apply.” [23-24]

[53] In concluding that sections 119 and 123 do not apply, Justice Thorburn granted the Crown access, subject to conditions, for use at trial,

“by the general principles of evidence that the probative value must outweigh the prejudicial effect and by the general principles in play when the documents refer to a minor as articulated in the YCJA: that is, balancing the protection of the privacy interests of a minor with the proper administration of justice”. [paragraph 26.]

[54] In reaching the conclusion that section 119 did not apply to the facts before her, Justice Thorburn relied upon the decision of Justice Borenstein in R. v. B. (J.), 2008 ONCJ 208, [2008] O.J. No. 1719, in which the Court held at paragraph 22 of that decision that, "Records relating to matters where charges were not laid and which were not disposed of by EJM are not captured by the limitations or restrictions in subsections 119 or (4) [of the YCJA]. These records may be occurrence reports or other records. Those records are not subject to any access period."

[55] In the case before Justice Borenstein cited above, the defence applied for access to the youth records of Crown witnesses to be called in a trial in which their client was charged with second degree murder and the Crown was seeking an adult sentence. Counsel submitted that they needed access to the witnesses’ youth records for full answer and defence. Some of the records that defence sought access to were records where charges were never laid.

[56] Justice Borenstein stated in his reasons that he did not know the reason why charges were never laid in relation to these records, and in particular whether extrajudicial measures had been used, thereby prohibiting the use of the records under section 119(4).

[57] Justice Borenstein determined that section 119(2) acts as a limitation period on the accessibility of records, and because there is no access period for records in which no criminal charges have been laid and where extrajudicial measures have not been used, the records are therefore accessible.

[58] He concluded that the test under section 123 is the appropriate test to determine accessibility of those records. He directed the Crown to vet the records and to provide a list to defence of the witnesses whose records related to matters in which no charges were laid and no extrajudicial measures were used for the purpose of a section 123 hearing.

[59] There is another line of cases that disagree with this approach in considering access requests for police notes and occurrence reports in which no criminal charges have been laid against the youth and EJM has not been used or the record is silent regarding EJM. See the following cases: R. v. L. (R.), 2008 ONCJ 366, per Justice M. Cohen; R. v. B. (A.), 2015 ONCJ 711, per Justice P. Downes; R. v. Gure, 2019 ONCJ 430, per Justice J. Loignon; R. v. O.Y., 2020 ONCJ 466, per Justice S. Caponecchia; R. v. C.S., 2020 ONCJ 560, per Justice J. De Filippis; and O.P. and Children’s Aid Society of London and Middlesex, 2020 ONCJ 675, per Justice W. Harris Bentley.

[60] In R. v. B. (A.), 2015 ONCJ 711, Justice Philip Downes held that the test under section 123 is clearly premised on the records being subject to an access period in section 119(2) and therefore does not apply to records where there is no defined access period. None of the occurrence reports in the case before him resulted in charges being laid, so he concluded that section 123 did not apply. See also Justice Marion Cohen’s decision in R. v. L. (R.), 2008 ONCJ 366 at para. 23.

[61] Most of the cases agree with this approach because it is consistent with the principles and objectives of the YCJA. As Justice Sandra Caponecchia states in R. v. O.Y., 2020 ONCJ 466, following the decision of Justice Downes in R. v. B. (A.), 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. [3] 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. [4]

[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 L. (S.) v. B. (N.), 2005 ONCA 790, [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)).” [paragraphs 21 to 22].

[62] Justice Wendy Harris Bentley takes a similar approach in O.P. and Children’s Aid Society of London and Middlesex, 2020 ONCJ 675.

[63] In that case, Justice Harris Bentley declined to grant access to records to police reports or notes relating to a young person in which no charges were laid by the police. The applicant was seeking access to the records for a civil action that the applicant had brought against a children’s aid society. Some of the records in question were silent as to whether the police engaged in extrajudicial measures. In determining that these records were not accessible, Justice Harris Bentley states the following at paragraphs 51 to 53 of the decision:

“[51] I note as well that s. 3(2) YCJA states the following;

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[52] Given the philosophy of the act and the direction on interpretation, it is my view that records for which no charges were laid are inaccessible. Allowing access to these records would not be consistent with the purpose and principles of the YCJA, nor the high measure of privacy accorded to young persons.

[53] No matter the reason for charges not being laid with respect to T.L.LP., whether because of extrajudicial measures or otherwise, these records are not accessible.”

Analysis:

[64] After reviewing all the police records in question, I find that the police occurrence report(s) and officer notes sought by Mr. De Amorim are records of an extrajudicial measure taken by the police under section 6 of the Act and therefore not accessible to Mr. De Amorim in accordance with section 119(4).

[65] In determining whether records in which no criminal charges are laid relate to an extrajudicial measure employed by the police, the court should take an expansive view of what constitutes a record of an extrajudicial measure under section 119(4) of the Act.

[66] This is consistent with the significant limitation on access to records of EJM afforded to youth by section 119(4), and is also consistent with subsection 3(2) of the Act, which provides that the YCJA “shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).”

[67] If a narrow and restrictive interpretation is applied, then the protections placed on privacy are meaningless. See: Ontario Human Rights Commission v. Toronto Police Services Board, [2008] O.J. No 4546 at paragraph 17, per Justice B. Weagant; R. v. B. (A.), 2015 ONCJ 711 at paragraph 18, per Justice P. Downes.

[68] As Justice Cohen states in R. v. L. (R.), 2008 ONCJ 366 at paragraph 15, “Section 119(4) is one of many provisions in the Act intended to protect the privacy of young persons. The reason the Act accords primacy to protecting the privacy of young people involved in the criminal justice is well-understood. It was succinctly articulated by Mr. Justice Doherty in L. (S.) v. B. (N.):

‘An overview of Part 6 [which includes section 119(4)] demonstrates a clear intention to protect the privacy of young persons. In doing so, the Act seeks to avoid the premature labelling of young offenders as outlaws and to thereby facilitate their rehabilitation and reintegration into the law-abiding community ...

Stigmatization or premature "labelling" of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence.’”

[69] The case before me can also be distinguished from R. v. C.M., 2010 ONSC 2177, supra, relied upon by counsel for Mr. De Amorim. In R. v. C.M., the police sought to investigate the young person for possession of a firearm. However, no firearm was found, and no charges were ultimately laid because there was insufficient evidence, not because EJM was utilized. Justice Thorburn determined that the record in question was merely an occurrence report.

[70] Unlike the facts before Justice Thorburn in R. v. C.M., in the case before me the occurrence report and police notes suggest that there may have been some evidence upon which the police could have laid a criminal charge, but they decided to use an informal extrajudicial measure as an alternative to the judicial process.

[71] The records in the case before me indicate a thorough investigation. The police attended at the home and interviewed the young person. They spoke to his father who arrived at the home later. The young person voluntarily surrendered the BB gun. The young person was cautioned. The young person was very remorseful and understood how dangerous the situation could have been. The officers declined to press charges. [6]

[72] In an email exchange between counsel for Mr. De Amorim and the young person’s father, attached to Mr. De Amorim’s application, the father advised counsel that the police spoke to his son for well over an hour, and that the young person wished to apologize to Mr. De Amorim in person.

[73] Although the occurrence reports and police notes that I reviewed do not explicitly state in writing that extrajudicial measures or “EJM” was undertaken, as earlier noted, in my view, the line of case law that applies an expansive view of what constitutes a record of an “EJM” is the correct interpretation, keeping in mind the general principles of the YCJA, the paramount importance of a youth’s privacy.

[74] Having found that the records in issue are records of extrajudicial measures, Mr. De Amorim is therefore prohibited from accessing these records for any purposes in accordance with section 119(4) of the Act. There are no exceptions.

[75] If I am wrong in the above analysis, and the police records in question are not records of extrajudicial measures, the records are still inaccessible to Mr. De Amorim under the legislation.

[76] I adopt the reasoning and approach followed by Justice Downes and Justice Caponecchia and several of my other colleagues as set out above in my decision [7].

[77] It does not make sense that access to youth records such as occurrence reports, police notes and other police reports relating to the police investigation of a youth in which no criminal charges are laid would be permissible under the legislation when section 119(2) prescribes time-limited, exceptional and increasing periods of access to records relating to far more serious outcomes where criminal charges have been laid. Such an interpretation is contrary to the absolute prohibition on youth records in section 118, subject to the exceptions in section 119, and the guiding principles of the YCJA.

[78] Section 123 also does not assist the applicant. This conclusion is apparent from a plain reading of the section. Section 123(1) provides that a youth justice court may order that a person be given access to all or part of a record kept under sections 114 to 116 "after the end of the applicable period set out in subsection 119(2)."

[79] Section 123 (1) is clearly intended to apply its far more stringent test for access to those records under section 119 (2) in which the access periods have expired. Section 123 does not apply to those records for which there is no defined access period under section 119 (2), or nowhere else in the Act, in keeping with the strict and unqualified prohibition on access under section 118(1) except as required or authorized by the Act.

[80] If I am wrong in the above interpretation of the Act, and section 123 (1) does apply to the records in issue here, Mr. De Amorim does not satisfy the significantly onerous three-part conjunctive test for access to the records under section 123 (1). [8]

[81] First, Mr. Amorim does not have a valid and substantial interest in the record, nor is it necessary for access to be given to the record in order to advance his own private prosecution. All the facts necessary to lay a private information are known to him, including the identity of the young person, his own experience of the alleged offence, all the relevant dates, times, and places. The correspondence between Mr. De Amorim’s counsel and W. C.’s father also provided significantly more information to him.

[82] Secondly, it is not in the interest of justice to provide private individuals access to the records of a police investigation involving a youth in which the police have decided not to lay charges, so that these individuals can determine whether to initiate their own private prosecutions against the youth.

[83] This only exposes the youth to further intrusion into their private lives, further stigma, and further prejudice to their liberty and security once the police investigation has concluded.

[84] To allow this would entirely defeat the principles and objectives of the YCJA, which acknowledge the “diminished moral blameworthiness and culpability” of young persons, and include promoting the rehabilitation and reintegration of young persons, ensuring fair and proportional accountability, reducing stigmatization, and ensuring enhanced procedural protections for young persons, including the protection of their right to privacy.

[85] It is also questionable whether the Attorney General would consent to a private prosecution and permit it to proceed. Private prosecutions under the YCJA require the consent of the Attorney General as a safeguard against prosecutions that are improper or contrary to the public interest, which in this case include the principles and objectives of the YCJA. There is nothing in Mr. De Amorim’s application that suggests he has sought the Attorney General’s consent.

Conclusion:

[86] What happened to Mr. De Amorim was no doubt very frightening and upsetting. However, the constitutionally protected private records of W.C., who is treated separately and distinct from an adult in our criminal justice system, is not accessible to him under section 119 (4) of the YCJA or otherwise under the statutory framework and underlying principles of the Act.

[87] For all the above reasons, Mr. De Amorim’s application for access to W.C.’s youth record is dismissed.

[88] I wish to thank counsel for their excellent submissions and the case law provided.

Released: October 29, 2021 Signed: Justice Sheilagh O’Connell

[1] Email correspondence from the police to Mr. De Amorim attached to his application.

[2] See R. v. B. (D.), 2008 SCC 25, [2008] 2 S.C.R. 3, at paragraph 41.

[3] Please note that there is a distinction under the Act between “extrajudicial measures” (“EJM”) and “extrajudicial sanctions” (“EJS”). Extrajudicial measures are used when no criminal charges are laid. Extrajudicial sanctions are considered and used only after the criminal the charge is laid, and is subject to the access periods in section 119(2).

[4] K. Douglas and D. Goetz, Law and Government Division, “Legislative Summaries of Bill C-3, February 21, 2000, as cited by Justice Thorburn at paragraph 19 of R. v. C.M., 2010 ONSC 2177, supra.

[5] For example, if a charge has been dismissed or withdrawn, the period of access expires two months after the dismissal or withdrawal. If a youth is found guilty and sentenced to a conditional discharge, the access period expires three years after the youth is found guilty: Subsections 119(2) (c) and (f).

[6] It should be noted that the Court is disclosing facts that are already known to Mr. De Amorim, based on his counsel’s correspondence with the young person’s father, and his email correspondence with the police.

[7] See: R. v. L. (R.), 2008 ONCJ 366, per Justice M. Cohen; R. v. B. (A.), 2015 ONCJ 711, per Justice P. Downes; R. v. Gure, 2019 ONCJ 430, per Justice J. Loignon; R. v. O.Y., 2020 ONCJ 466, per Justice S. Caponecchia; R. v. C.S., 2020 ONCJ 560, per Justice J. De Filippis; and O.P. and Children’s Aid Society of London and Middlesex, 2020 ONCJ 675, per Justice W. Harris Bentley.

[8] See R. v. B. (J.), 2008 ONCJ 208, 2008 CarswellOnt. 2494 at paragraph 21; Justice Andrea Tuck-Jackson, “Accessing Police Records Under the Youth Criminal Justice Act,” 19 Canadian Criminal Law Review 83.