Warning

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 07 20 Court File No.: Halton Info #21- 939

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

ROBERT SCOTT MUSSON

Before: Justice Jennifer Campitelli Heard on: July 13, 2022 Reasons for Judgment released on: July 20, 2022

Counsel: Renee Mahoney ..................................................................................... counsel for the Crown Andrew Matheson and Natalie Kolos ..... counsel for the accused Robert S. Musson Brendan Neil and E. Sarah Lawson ......................... counsel for the young person A.L.

Campitelli J.:

[1] Dr. Musson brought an application pursuant to s. 123 of the Youth Criminal Justice Act seeking access to and subsequent production of records related to two youth occurrences I previously ruled were “records”, caught by section 2 of the Youth Criminal Justice Act. The first occurrence in time relates to an alleged “stranger assault” in 1997. The second relates to a break and enter, which occurred at the home of Dr. Musson in 1998.

[2] Two young persons were entitled to notice with respect to the application brought by counsel for Dr. Musson pursuant to s. 123 of the Youth Criminal Justice Act. A crown witness, L.W., and the complainant in this matter, A.L. The crown confirmed, on the record before me, that both parties were provided with the requisite notice. The complainant, A.L., was represented by counsel on this application.

[3] At the conclusion of the hearing, which was held pursuant to s. 123 of the Youth Criminal Justice Act, I ruled as follows:

(1) With respect to the records related to the “stranger assault”, I found that s. 119(4) of the Youth Criminal Justice Act precluded access to those records. Accordingly, the defence application pursuant to s. 123 of the Youth Criminal Justice Act related to those records specifically was dismissed [1].

(2) With respect to records related to the break and enter occurrence, I concluded that Dr. Musson had demonstrated that the test, as set out in s. 123 of the Youth Criminal Justice Act had been met. I granted access with respect to those records specifically [2].

(3) However, I also concluded that the Mills regime was applicable on the facts before me, and that Dr. Musson must apply under s. 278.3 of the Criminal Code of Canada for production of the records I ordered were accessible pursuant to the Youth Criminal Justice Act. As such, I ordered the records remain under seal of the court. Judicial summaries of the redacted material had already been provided to counsel for Dr. Musson.

[4] I advised counsel that I would provide written reasons for the ruling I made at the conclusion of the s. 123 hearing; these are those reasons.

The Applicable Legislation:

[5] Section 123(1) of the Youth Criminal Justice Act states that a youth court judge may, on application by a person after the end of the applicable period set out in 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

Disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province; or

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

[6] Section 119(4) of the Youth Criminal Justice Act states that 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.

[7] Section 6(1) of the Youth Criminal Justice Act (Warning, Cautions and Referrals) states that: 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 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.

The 1997 Youth Records Related to the “Stranger Assault”

[8] The occurrence report related to the “stranger assault” in 1997 indicates that the victim, who was a young person, was “cautioned” with respect to the criminal offence of public mischief. Of note, the initial victim in this police occurrence becomes the eventual subject of police attention. On the record before me, the only action taken by the authorities as a result of their investigation into the alleged “stranger assault” is noted as a caution. I found that the caution issued to the young person with respect to the “stranger assault” was an extrajudicial measure within the meaning of the Youth Criminal Justice Act. A plain reading of section 6(1) of the Youth Criminal Justice Act together with sections 4 and 4.1, makes it clear that police officers may caution young persons with respect to possible criminal offences, as an alternative to judicial proceedings. I concluded, on my review of the facts before me, that the caution provided to the young person is what the Youth Criminal Justice Act contemplates as an extrajudicial measure.

[9] Having come to this conclusion, I also determined that 119(4) of the Youth Criminal Justice Act was applicable. Section 119(4) limits access to the records at issue whether access was necessary for full answer and defence, and whether s. 123 provided an avenue for access: R. v. O.Y., 2021 ONSC 1105 (SCJ).

[10] Counsel for Dr. Musson argued that the police investigation into the alleged “stranger assault” was not complete, that they intended to utilize a polygraph test and consequently, that the police attention on these facts did not rise to the level of an extrajudicial measure within the meaning of the Youth Criminal Justice Act. As such, counsel for Dr. Musson argued that s. 119(4) was not applicable and the court was able to apply the test under s. 123 of the Youth Criminal Justice Act to determine if access to the records was permissible.

[11] After carefully considering counsel’s submissions on this point, I determined that there was no evidence before me to suggest that the police investigation into the alleged “stranger assault” in 1997 was incomplete. I was not able to draw that inference from the facts before me, nor would it be appropriate for me to do so. I had a clear notation from one of the investigating officers, contained within the related records themselves, that the young person received a caution for the criminal offence of public mischief. Moreover, I had no evidence before me on this application that the young person was ever charged with any criminal offence related to the alleged “stranger assault”. Therefore, for the reasons articulated above, I found the language used by this officer lead me to conclude that an extrajudicial measure was utilized, as opposed to commencing judicial proceedings with respect to the alleged “stranger assault”.

[12] I will now turn to counsel’s second argument on this point. On the specific facts before me, I found that the police utilized a caution, which on my review was consistent with an extrajudicial measure within the meaning of the Youth Criminal Justice Act. However, even if I had not reached such a conclusion, I am still not persuaded by counsel’s argument. It could not have been Parliament’s intention that young persons, where the level of police attention does not even rise to a caution, would attract less protection with respect their individual privacy rights than young persons who attract a greater amount of police attention. That line of reasoning does not flow logically from a plain reading of the legislation, nor is it consistent with the underlying principles of the Youth Criminal Justice Act: R. v. O.Y., 2020 ONCJ 466 (OCJ) at para. 21.

[13] Finally, after concluding s. 119(4) of the Youth Criminal Justice Act is engaged, counsel for Dr. Musson urged me to adopt the approach taken by Justice Spies in R. v. L. (R.), 2007 O.J. No. 5293 (SCJ) in my redaction of the related records. In the result, I found the approach taken by Justice Caponecchia in R. v. O.Y., 2020 ONCJ 466 (OCJ) was more instructive on these facts. I adopted that approach and the records related to the alleged “stranger assault” were withheld in their entirety.

The 1998 Youth Records Related to the “Break and Enter”

[14] The 1998 youth records at issue on this application relate to a break and enter investigation where Dr. Musson is the complainant and A.L., when he was a young person, is one of the alleged suspects. The other young person implicated with respect to this police investigation is L.W. Of note, L.W. is an anticipated crown witness with respect to the prosecution involving Dr. Musson.

[15] In deciding whether production of these records was appropriate, I applied the test outlined in s. 123 of the Youth Criminal Justice Act. I found Justice Nelson’s decision in R v. D. (M.), [2015] O.J. No. 2150 (OCJ) particularly instructive in my application of the relevant test.

Does Dr. Musson have a valid and substantial interest in these records or part?

[16] In the result, I concluded that Dr. Musson had demonstrated that his interest in the records was legitimate as opposed to trivial or marginal: R v. D. (M.) [2015] O.J. No. 2150 (OCJ) at paras. 49-50 for the following reasons:

(1) There is significant overlap between the break and enter records, subject of this application, and various other records, which have already been disclosed;

(2) These records relate to an incident where the complainant in this prosecution, A.L. and another proposed crown witness L.W. are the alleged suspects and Dr. Musson is the complainant;

(3) Although the break and enter, which is the subject matter of these records is dated, it is in close proximity to the sexual offences Dr. Musson is alleged to have committed.

[17] Counsel for A.L. strongly opposed this application, arguing that Dr. Musson had not demonstrated the level of relevance required to satisfy this branch of the test. However, the ultimate use to be made of any records, which may be ordered produced by this court, is an argument for another day. On this application, with a view to the threshold that Dr. Musson must meet, I was persuaded that he had satisfied his onus. Counsel for Dr. Musson argued that the break and enter records were significant to the defence narrative. That they were integrally related to the unfolding of material events and the pattern of disclosure. I accepted Dr. Musson’s interest in these records was legitimate. The defence was not on a “fishing expedition”: R v. D. (M.), [2015] O.J. No. 2150 (OCJ) at para. 50.

Is it necessary for access to be given to these records or part in the interest of the proper administration of justice?

[18] My analysis under this branch of the test required a weighing of the public interest in maintaining the youth’s privacy interest in the records and Dr. Musson’s request to access these records in an effort to assist his defence. Here, the relevance of the records was important to assess. The less relevant the records, the more likely that the youth’s privacy rights would prevail: R v. D. (M.), [2015] O.J. No. 2150 (OCJ) at para. 51. I was persuaded that I had to assess relevance on a Stinchcombe basis, which addressed Dr. Musson’s assertion of his rights, as protected by s. 7 of the Canadian Charter of Rights and Freedoms. Ultimately, I determined that the records at issue “may be reasonably useful to the defence” and that at this stage, denying Dr. Musson access to these records would interfere with his ability to make full answer and defence: R v. D. (M.), [2015] O.J. No. 2150 (OCJ) at para. 51.

Is disclosure of the record or part or the information in it prohibited under any other Act of Parliament or the legislature of a province?

[19] In my application of this branch of the test as outlined in s. 123 of the Youth Criminal Justice Act, I found Jerace v. British Columbia (Provincial Court), 2019 BCCA 320 provided guidance. In particular, the language found at paragraph 29 [3]:

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.).

[20] Dr. Musson faces allegations listed in s. 278.2(1)(a) of the Criminal Code of Canada, where A.L. is the complainant. Consequently, I concluded that I was not able to make any final determination with respect to production of the youth records at issue, absent a formal application brought pursuant to s. 278.3 of the Criminal Code of Canada.

Released: July 20, 2022 Justice Jennifer Campitelli

Footnotes

[1] For ease of reference, those records are outlined in the Defence Application Record “Appendix A” #4, 7, 10

[2] For ease of reference, those records are outlined in the Defence Application Record “Appendix A” #1, 2, 3, 5, 6, 8, 9

[3] See also R. v. O.Y. 2020 ONCJ 466 (OCJ) at para. 25