WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: L.J.-M. v. Ontario Provincial Police, 2022 ONCJ 416

DATE: September 15, 2022

BETWEEN:

L.J-M, on her own behalf and as litigation administrator of the ESTATE OF R.M., Deceased

Applicant

— AND —

THOMAS CARRIQUE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE

1st Respondent

-AND-

Chief Darren Montour FIRST NATIONS POLICE

2nd Respondent

Before Justice W. Kapurura

Heard on July 8, 2022 and September 15, 2022

Reasons for Judgment released on September 15, 2022

Davin Charney............................................................................. counsel for the Applicants Michelle Valentini .......................................................... counsel for His Majesty the King

KAPURURA J.:

Part One – Introduction

[1] This is the court’s decision on an application brought by the Applicants seeking orders for access to and disclosure of records belonging to the deceased young person, R.M.

[2] The application is pursuant to the provisions of the Youth Criminal Justice Act, S.C. 2002, c.1 [“YCJA”]

[3] The application was heard on July 8th, 2022 and September 15th, 2022, at the Ontario Court of Justice, located at 311 Jarvis Street, City of Toronto, Province of Ontario.

[4] The Applicant, L.J-M, brought the application on her own behalf and as litigation administrator of the estate of the deceased young person, R.M.

[5] The Applicants intend to use the records in a civil lawsuit currently before the Superior Court of Justice [Court file number CV…..]. In the civil lawsuit, the Applicants are seeking damages in regard to circumstances leading to R.M.’s death and events that transpired immediately following the death of R.M.

[6] The 1st Respondent, Thomas Carrique, is the commissioner of the Ontario Provincial Police. The Respondent did not file materials in response to the application.

[7] The 2nd Respondent is Chief Darren Montour, First Nations Police. The 2nd Respondent did not file materials in response to the application. However, on September 15th, 2022, the Applicants’ counsel provided the court with an email that was sent to him on September 13th, 2022 by Lawrence Gridin, legal counsel for the 2nd Respondent, stating that “My client, Six Nations Police Service Chief Darren Montour, consents to the attached order”.

[8] This matter presents unique circumstances within the context of applications for access to youth records pursuant to the provisions of the YCJA for the following reasons;

i. The young person in this matter, R.M., is deceased.

ii. The Applicant(s) seeking access to the youth records is R.M.’s mother.

iii. As part of the application materials, this court received an order from the Superior Court of Justice dated August 12th, 2021, requiring the Chief of the Six Nations Police to produce a youth record to the Applicant (and the same youth record is subject to this application).

[9] The court received and reviewed the following materials filed in support of the application;

a. Notice of application (amended) dated July 18th, 2022.

b. Affidavit of Amy Waldman (updated) dated July 18th, 2022.

c. Further amended statement of claim (Superior Court of Justice) dated September 14, 2015

d. Consent of L.J-M dated July 18th, 2022

e. Draft order filed by the Applicants.

f. Superior Court of Justice order of Master Frank dated August 12th, 2021 (under file number CV….)

Part Two – The issues

[10] The issues to be determined are;

i. Do the requested materials constitute “records” as defined under section 1 of the YCJA?

ii. What specific records are being sought?

iii. Who created and has custody of the records pursuant to sections 114 to 116 of the YCJA?

iv. What is the applicable YCJA section granting access to the records?

v. Have the Applicants met the legal test pursuant to section 123(1)(a) of the YCJA?

vi. How should the notice requirements pursuant to subsections 123(4) and (5) of the YCJA be addressed in circumstances where the young person is deceased?

vii. Should access to the records be granted pursuant to section 118 of the YCJA?

viii. If access to the records is granted, what purpose should the records be used for, per section 123(5) of the YCJA?

ix. If access to the records is granted, what further restrictions should the court impose on the use and disclosure of the records, per section 129 of the YCJA?

Part Three – Background facts

[11] In the early morning of July 13, 2013, R.M. was killed following a motor vehicle accident. The accident occurred on Mississauga Road on Mississaugas of New Credit First Nation territory. R. M. was indigenous from Six Nations.

[12] R.M. was 16 years of age at the time of death.

[13] R.M. was being pursued by Ontario Provincial Police (“OPP”) officers at the time of the motor vehicle accident or immediately prior to the accident. OPP officers believed that R.M. was driving a stolen motor vehicle.

[14] R.M. was ejected from the vehicle he was driving after he drove off the road and collided with a tree. The vehicle continued to move forward and R.M. was pinned under the front driver’s side tire.

[15] OPP officers were first to arrive at the scene.

[16] Six Nations Ambulance, Six Nations Police, Haldimand County Emergency Medical Services and Haldimand County Fire Department also arrived at the scene. Various personnel workers moved the vehicle and attended to R.M.

[17] R.M. succumbed to his injuries and died at the scene.

[18] According to the Applicants’ statement of claim in the civil lawsuit, by approximately 7:15 a.m. on July 13, 2013, OPP officers had identified R.M. as the deceased. The identification of R.M. was made with the assistance of Six Nations Police officers.

[19] Coroner, Dr. Tsuchida, attended at the scene of the motor vehicle accident and pronounced R.M. dead. Dr. Tsuchida took possession of R.M.’s body and thereafter ordered as investigation, including an autopsy.

[20] On Sunday July 14th, 2013, the Applicant, L.J-M (R.M.’s mother), became aware of circumstances of the accident and the death of an individual.

[21] On July 15th, 2013, the Applicant, L.J-M, was able to identify the deceased as her son, R.M., at Hamilton General Hospital.

[22] On July 15th, 2013, an autopsy was conducted at the Regional Forensic Pathology Unity at Hamilton Health Sciences.

[23] On September 14th, 2015, the Applicants commenced a civil action in the Superior Court of Justice, [file number CV..]. The civil action alleges various wrongs were committed against the Applicants by various defendants, including OPP officers.

[24] In this application for youth records, the court was advised that the parties to the civil action have identified several records in their possession that are relevant to the civil action but may be protected by the provisions of the YCJA.

[25] Counsel for His Majesty the King and the Applicants have reviewed the records in their possession and have taken the position that the records cannot be released due to the provisions of the YCJA.

[26] This court was advised that the records are required for the following reasons;

i. For the proper administration of justice and fair adjudication of the issues in dispute in the civil action, and;

ii. The Applicants require the records to prove their case in the civil action. The Respondents require the records to properly make a defence.

Part four – Procedural history

[27] This matter was initially heard in this court on July 8th, 2022. On the same day, the court received an updated draft order from the Applicants.

[28] Counsel for the Applicants and counsel for His Majesty the King attended the first hearing.

[29] The draft order presented to the court had the following clauses (as orders being sought from this court), among others;

[1] THE COURT ORDERS that the Ontario Provincial Police record titled “Persons Detail Report” relating to R.M. shall be produced to the Ministry of the Attorney General, Crown Law Office – Civil, and this record may be redacted by HMK for relevance and/or privilege as needed, before further production of the record, as described below;

[2] THE COURT ORDERS that a photograph of R.M., previously produced by the Six Nations Police to counsel for the applicants, shall be produced to the parties in the civil action, being Court File No. … (the “Action”) before the Ontario Superior Court of Justice;

[Emphasis added]

[30] With respect to paragraph 1 of the draft order, the court asked the parties to provide further information regarding the contents of the ‘persons detail report’ in order to ascertain whether the contents of the report constitute a record as defined under section 1 of the YCJA.

[31] The court’s concern was with respect to the fact that some materials that had been referenced in the initial application (prior to amendment) related to an investigation pertaining to the young person’s death and an autopsy that had been conducted on the young person’s body.

[32] Based on submissions made by counsel for His Majesty the King, the court was not satisfied that all contents of the ‘persons detail report’ constituted a record pursuant to section 1 of the YCJA.

[33] Further, given that the young person is deceased, this court was of the view that the young person’s privacy rights are heightened.

[34] Part 6 of the YCJA governs publication, records and information respecting young persons dealt with under the Act. Its statutory purpose is to protect the privacy of young persons.[^1]

[35] In ​A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR 567, it was stated that;

[17] Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child.

[36] The non-publication provisions under the YCJA were held to be “indicative of the premium placed on the privacy interests of all young persons involved in young offender proceedings”[^2]

[37] In S.L. v. N.B. 2005 11391 (ON CA), [2005] O.J. No. 1411, Doherty J summarizes the law pertaining to access to youth records as follows;

[42] Sections 117 through 129 of the YCJA address access to records held by the youth justice court, the police, or a government department or agency. 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)).

[43] Even where access is permitted, Parliament seeks to protect young persons’ privacy interests by limiting dissemination of the information in the records even after access is granted. Section 129 reads:

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.

[38] This court then adopted the procedure followed by O’Connell J in Boyer v. Doe[^3] whereby the court ordered to have the materials delivered to the court for inspection.

[39] On July 21st, 2022, with the consent of the Applicants and with the consent of counsel for His Majesty the King, this court made an order requiring the OPP to make available to this court an unredacted copy of the record titled “Persons Detail Report” that is kept by the OPP relating to the young person, R.M.

[40] Following the order, the materials were delivered to the court and were inspected by this court.

[41] Upon inspection, the court concluded that the requested materials constitute a record pursuant to the YCJA. However, some of the information contained in the records was not connected to the incident of July 13th, 2013, the subject matter of the civil lawsuit.

[42] With respect to clause 2 of the draft order provided by the Applicants (see paragraph 29 above), this court asked counsel for the Applicants whether the photograph constituted a record as defined under section 1 of the YCJA and whether the photograph had been provided to counsel by the Chief of First Nations Police pursuant to the access provisions of the YCJA under section 118.

[43] Counsel for the Applicants argued that the photograph was lawfully in the possession of the Applicants at the time of this application as the photograph had been disclosed to the Applicants pursuant to an order for disclosure of third-party records dated August 12th, 2021 that had been made in the Superior Court of Justice on a motion under file number [CV...]. The Superior Court of Justice disclosure order was made by Master Frank and provides as follows;

2. THIS COURT ORDERS that Chief of the Six Nations Police Darren Montour shall produce to the plaintiffs a copy of the photograph brought to the scene of the death (of the young person, R.M.) by Constable Henry.

3. THIS COURT ORDERS that the records, indicated above, are produced subject to the following;

e. Any production of the records indicated above by the plaintiffs to the defendants may be subject to and shall be done in compliance with the Youth Criminal Justice Act S.C. 2002, c.1 (“YCJA”) if applicable

[emphasis added]

[44] The ‘plaintiffs’ in the proceeding referred to in the Superior Court order are R.M.’s mother and other family members of R.M., and the defendants are His Majesty the King, Dr. William Tsuchida, Dr. John Fernandes, Dr. Sergev Pozdnyakov and Six Nations Police Chief Darren Montour.

[45] This court inquired with the Applicants’ counsel on whether Six Nations Police should be added as a party to this records application given that the photograph sought was ‘created and kept’ by Six Nations police. Counsel for the applicant argued that it was not necessary to include Six Nations Police as the Applicants had already received the photograph pursuant to the Superior Court order and all that the Applicants required was permission to disclose and use the photograph that is already in the Applicants’ possession in the civil lawsuit.

[46] Without commenting on the procedural and substantive issues surrounding the order by the Superior Court of Justice, this court advised counsel for the Applicants that submissions were to be made at the next court date on whether the said photograph was in the possession of the Applicants pursuant to the access provisions of the YCJA, as required under section 118 of the YCJA.

[47] As stated by Doherty J in S.L. v. N.B;[^4]

[44] Section 118(1) is central to the statutory scheme controlling access to records set up in the YCJA:

Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act [emphasis added].

[45] 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 all the more emphatic by s. 138 which makes it an offence to violate s. 118.

[48] After the hearing was adjourned on July 8th, 2022 to September 15th, 2022, counsel for the Applicants decided to amend their application to add Chief Darren Montour, Six Nations Police, as a second Respondent (and served him with the amended application).

[49] Accordingly, Chief Darren Montour, Six Nations Police, became a party in this proceeding, thereby giving this court authority to make orders that are binding upon First Nations Police.

Part five – Legal considerations and analysis

[50] At the initial hearing of this matter on July 8th, 2022, this court did emphasize to the parties that even though the request for access to the youth records was not being opposed by any of the Respondents, it is the duty of this court to ensure that the access provisions under the YCJA have been complied with prior to access being granted.

[51] One of the objectives of the YCJA is to address “the pressing and unique concerns that arise when young persons come into conflict with the criminal law”[^5]

[52] The records requested in this matter are police records and they fall under section 115 of the YCJA. Access to these records is governed by section 118 of the YCJA.

[53] Section 123 of the YCJA provides as follows;

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 justice 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; 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.

[54] In Boyer v. Doe[^6], O’Connell J provides the following guidance;

69. Again, the Act provides no express guidance as to what the court should consider in determining whether the criteria under section 123(1) has been satisfied. However, in my view, the following factors4 should be considered by the court in determining whether access to the records should be granted in the context of civil litigation under this more stringent test:

a. the person seeking the record and whether that person is a victim seeking damages or defending against damages in the civil lawsuit;

b. the probative value of the record to the material issue in the civil litigation and in particular the precise nexus between any specific record and the specific issues arising in the context of the civil litigation;

c. the extent to which the record is necessary for the proper administration of justice and in particular, whether records being sought are necessary for the applicant in determining the material issues in the civil litigation and in advancing the civil litigation;

d. the nature of the disposition for each of the young person's records being sought and the amount of time that has passed since the expiry of the access period. The access period is clearly a function of the outcome of the charge, which is relevant to the youth's privacy interests in balancing competing policy concerns. Further, the longer the access period has remained closed, the greater the protection of that privacy;

e. the young person's reasonable expectation of privacy in the particular information being sought.

f. the potential impact of the production of the records on the specific young person;

g. the potential impact of production on the integrity of Part Six of the YCJA, as informed by the principles set out in section 3 of the Act.

70 The importance of the privacy interests of the young persons under section 123 analysis cannot be overstated and should be given great weight.

[55] An application under section 123 of the YCJA requires notice to the young person.[^7]

[56] A youth justice may waive the notice requirement if the judge is of the opinion that (a) to insist on the giving of the notice would frustrate the application or (b) reasonable efforts have not been successful in finding the young person.[^8]

[57] The waiver provisions under subsection 123(4) of the YCJA do not address a situation where the young person is deceased. Even though the use of the word ‘may’ gives discretion to the youth justice court, the exercise of that discretion is guided by the legislative provisions under sub-paragraphs (a) and (b).

[58] Subsection 123(4) of the YCJA reads as follows;

Where notice not required

(4) A youth justice court judge may waive the requirement in subsection (3) to give notice to a young person when the judge is of the opinion that

(a) to insist on the giving of the notice would frustrate the application; or

(b) reasonable efforts have not been successful in finding the young person.

[59] It appears that there is a legislative gap under subsection 123(b) in situations where the young person is deceased.

[60] This court finds that, in this matter, notice is not required given that R.M. is deceased. Further, the Applicant, L.J-M, is R.M.’s mother and is acting as litigation administrator of the estate of R.M. in the civil law suit.

[61] The next inquiry is whether the Applicants have met the legal requirements under section 123 of the YCJA.

[62] In Toronto Police Service v. L.D. 2015 ONCJ 430, Cohen J states;

[34] It is apparent that section 123 provides for a more stringent access test than section 119(1)(s): “valid and substantial” as opposed to “valid”, “necessary” rather than “desirable.” This follows from the fact that records which fall outside the access period are subject to destruction, disposal or archiving under section 128 of the Act.

[63] In Re JD, it was noted that “an access order faithful to s. 123 of the Act is an exercise of judicial discretion that has strict boundaries”.[^9]

[64] In this matter, R.M.’s mother, on her own behalf and as litigation guardian to the estate of R.M., has filed a lawsuit in the Superior Court of Justice against His Majesty the King and other defendants, seeking damages with respect to circumstances leading to R.M.’s death and events that transpired immediately following R.M.’s death.

[65] This court is mindful of R.M.’s indigenous identity. Accordingly, in assessing this Application, this court is mindful of the systemic and background factors affecting aboriginal people in Canada, as explained in R. v. Ipeelee.[^10]

[66] Given the nature of the civil proceeding that has been instituted by R.M.’s mother, it is clear that R.M.’s mother does have a valid and substantial interest in the requested youth record.

[67] R.M. is deceased. It will be challenging for R.M.’s mother to properly advance her case in the civil proceeding without the youth record. Accordingly, it is necessary for access to the youth records to be granted in the interest of the proper administration of justice.

[68] As stated by O’Connell J in Boyer v. Doe (supra), the records sought in this matter are necessary for the Applicants in determining the material issues in the civil litigation and in advancing the civil litigation. In the civil lawsuit filed by the Applicants, the Applicants are seeking damages in regard to circumstances leading to R.M.’s death and the events that transpired immediately following R.M.’s death. The requested records, as reviewed and confirmed by this Court, provide details associated with the events (with the exception of other unrelated information which is to be redacted as ordered below).

[69] The release of R.M.’s youth record is not prohibited under any other Act of Parliament or the legislature of a province.

[70] Accordingly, this court finds that all the requirements under the YCJA pertaining to the release of R.M.’s records have been met.

Part seven – Orders

[71] For the reasons above, this court hereby makes an order for access to R.M.’s youth records in accordance with the following terms:

1. THE COURT ORDERS that the Applicants are granted access to the Ontario Provincial Police record titled “Persons Detail Report” relating to R.M. The record shall be produced first to the Ministry of the Attorney General, Crown Law Office – Civil, before further production of the record, as described below. Details of any occurrences prior to July 12th, 2013 (with the exception of “identification information” and “contacts” information), shall be redacted.

2. THE COURT ORDERS that the Applicants are granted access to the ‘mug shot’ style photograph of R.M that is in the possession of Six Nations Police Chief, Darren Montoure. The Six Nations Police Service is permitted to redact and not produce information unrelated to the occurrences in issue including deletion of any reference to other cases or matters which may be contained in their records;

3. THIS COURT FURTHER ORDERS that any production or disclosure or use of the records referred to in paragraphs 1 and 2 (the “Records”) shall be subject to the following conditions:

a. In accordance with section 129 of the Youth Criminal Justice Act, the applicants, respondents, and His Majesty the King are permitted to copy and produce the records described in paragraphs 1 and 2 only to the parties to the civil action, and the parties may use the records in the civil action [Superior Court of Justice, Court file #...] in accordance with the Rules of Civil Procedure and the Youth Criminal Justice Act;

b. The copy of the records shall be password-protected;

c. The password shall only be provided to counsel in the civil action in a separate communication from any communication that accompanies a copy of the records.

d. The records shall only be used in the civil lawsuit before the Ontario Superior Court of Justice [Court file #...].

e. The young person shall be identified by initials only.

f. The records are to be maintained in conditions of strict confidentiality and shall not be reproduced, disclosed, or published in any way except as may be required for the purposes of the civil proceeding.

g. The records shall be destroyed by all parties at the expiry of the appeal period from any final order of the Superior Court of Justice in the civil lawsuit or upon any final settlement of the civil lawsuit;

h. No copy of the records shall be provided to counsel in the civil action [Superior Court of Justice, Court file #...] until said counsel undertakes as follows:

ii. To ensure that the relevant copy of the records remains password protected.

iii. To only use the records and the information contained therein for the purposes of the civil action; and

iv. To ensure that all copies of the records are destroyed within 30 days following the final determination of the action or the expiry of the deadline for the appeal of same, whichever is longer.

4. THIS COURT FURTHER ORDERS that the persons to whom disclosure is to be made are;

i. His Majesty the King in right of Ontario.

ii. L.J-M, on her own behalf and as litigation administrator of the ESTATE OF R.M., Deceased.

iii. Parties and defendants to the civil lawsuit in the Superior Court of Justice, [File #..]

iv. The legal representatives and/or insurers of the above.

5. THIS COURT FURTHER ORDERS that there shall be no costs of this Application.

Released: September 15, 2022

________________­

Signed: Justice Wiriranai Kapurura Ontario Court of Justice 311 Jarvis Street Toronto, Ontario, M5B 2C4

[^1]: Cohen J: Toronto Police Service v L.D. 2015 ONCJ 430 (para 21) [^2]: L.(S). v. B.(N) 2005 11391 (ON CA), 2005 CarswellOnt 1417 [^3]: Boyer v. Doe 2017 ONCJ 272 para 12 [^4]: 2005 11391 (ON CA), [2005] O.J. No. 1411 [^5]: S.L. v. N.B., 2005 11391 (ON CA) para 33 [^6]: Boyer v. Doe 2017 ONCJ 272 [^7]: s. 123(3) YCJA [^8]: s. 123(4) YCJA [^9]: Re JD 2009 ONCJ 505 at para 34 [^10]: R. v. Ipeelee 2012 SCC 13 para 60