Court File and Parties

COURT FILE NO.: CR-16-50000457-0000 DATE: 20170221 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN – and – M.O.

Counsel: S. Horgan for the Crown J. Penman for the accused

HEARD: December 5, 6, 7 and 8, 2016

RULING ON VOIR DIRE

THEN J. :

[1] The accused is charged with aggravated assault involving a shooting which occurred in 2014, and related firearms offences. The applicant seeks a finding by this Court that the police conducted an unreasonable search, thus breaching the applicant's Section 8 Charter rights when the police accessed his fingerprints and identifying information, taken while the accused was a young offender, outside the Youth Criminal Justice Act (“YCJA”) access period as specified in s.119(2)(c) of the YCJA.

[2] If a breach is found to have occurred, the applicant seeks an order under s.24(2) of the Charter, excluding the evidence of a match between a fingerprint taken from the crime scene and the applicant's fingerprints taken six years ago earlier in April, 2008 when the applicant was a young person upon his arrest at that time for the offence of robbery, which charge was subsequently withdrawn in September, 2008.

[3] The applicant also seeks the exclusion of the statement made by the applicant consequent to his arrest upon the present charges. If this evidence is excluded, there is no other evidence that the Crown is in a position to adduce in support of the charges.

[4] Counsel have agreed that the Court give a "bottom line" oral ruling as to the admissibility of this evidence, which I gave in summary form with written reasons to follow if necessary. Those written reasons will, if found to be necessary, constitute the official reasons for my ruling. I now propose to give those reasons.

[5] On this application, the Crown adduced the expert evidence of Ms. Christie Ann Liss who is a supervisor attached to AFIS, which is the branch of the Toronto Police Service, hereinafter TPS, which deals with the creation, retention and accessing of fingerprint records.

[6] The evidence of Ms. Liss outlined the processes of the AFIS with respect to the above functions, as well as the training relied on to discharge these functions and, in particular, with respect to the fingerprints of young offenders generally and, in particular, with respect to the fingerprints of the applicant in this case.

[7] The Crown also adduced the evidence of Police Constable Head who is a member of the forensic identification unit who obtained the fingerprints at the crime scene, and who obtained confirmation from AFIS of a match with that of the applicant's fingerprint taken six years earlier when the applicant was a young offender, thus leading to the arrest of the applicant with respect to the present charges.

[8] In my view, even if it can be reasonably argued that the TPS was entitled to retain the fingerprints of the applicant obtained while a young offender, the police are not permitted access to those fingerprints by virtue of s.119(2)(c) of the YCJA after a period of two months after the withdrawal of the charge giving rise to the taking of the fingerprint under any circumstances with respect to the investigation of a subsequent charge after the two months period expires, unless a judge's order is obtained pursuant to s.123(1)(a) of the YCJA.

[9] Section 123(1)(a) of the YCJA states:

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 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.

[10] Section 123(2) of the YCJA imposes the following restriction:

Restriction for paragraph (1)(a)

(2) Paragraph (1)(a) applies in respect of a record relating to a particular young person or to a record relating to a class of young persons only if the identity of young persons in the class at the time of the making of the application referred to in that paragraph cannot reasonably be ascertained and the disclosure of the record is necessary for the purpose of investigating any offence that a person is suspected on reasonable grounds of having committed against a young person while the young person is, or was serving a sentence.

[11] In my view, s.123(2) of the YCJA imposes by its terms a restriction on s.123(1)(a) of the YCJA which may reasonably be interpreted as limiting the availability of an order under s.123(1)(a) of the YCJA to circumstances where access to the young person’s record may be sought only while the young person remains a young person. Indeed, s.123(3) of the YCJA requires that notice be given to the young person if an application for a judge’s order is sought. While it may not be clear that a judge’s order under s.123 was available in the circumstances of this case, no such order was obtained in any event for the purpose of identifying the fingerprints obtained at the crime scene.

[12] There are further provisions of the YCJA which restrict access. For example, access to R.C.M.P. records is limited by s.120(3)(a) of the YCJA to five years. Section 120(3)(a) states:

(3) For the purposes of subsections (1) and (2), the period of access to a record kept under subsection 115(3) in respect of an offence is the following:

(a) if the offence is an indictable offence, other than an offence referred to in paragraph (b), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and

Section 120(3)(a) of the YCJA does not apply to the instant case for three reasons. First, s.115(3) pertains to records of young persons convicted of an indictable offence which is not the case here. Secondly, the records of the accused in this case were obtained approximately six years after the expiration of the access period when he was a young person. Finally, the police in this case did not access the records of the R.C.M.P. but their own records. In any event, s.128(3) of the YCJA requires that all records kept under s.115(3) be destroyed or archived after the applicable period set out in s.119 or 120.

[13] Another section of the YCJA which deals with the disclosure of records of young persons is s.125(1) which states:

Disclosure by peace officer during investigation

125 (1) A peace officer may disclose to any person any information in a record kept under section 114 (court records) or 115 (police records) that it is necessary to disclose in the conduct of the investigation of an offence.

[14] However, that disclosure is limited by s.125(8) of the YCJA to the periods of access specified by s.119(2) of the YCJA which in this case is two months after the withdrawal of the charge. Section 125(8) states:

Time limit

(8) No information may be disclosed under this section after the end of the applicable period set out in subsection 119(2) (period of access to records).

[15] Section 128(1) speaks to the effect of the end of access periods such as 119(2)(c) prohibiting further use as follows:

Effect of end of access periods

128 (1) Subject to sections 123, 124 and 126, after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

[16] The Crown relies on s.128(2) which states:

Disposal of records

(2) Subject to paragraph 125(7)(c), any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for …

[17] The Crown submits that since this section allows a discretion to destroy or transmit records to be archived it is permissible by inference not to destroy or archive the records and therefore to retain the records. In my view the discretion referred to in s.128(2) of the YCJA is better interpreted as allowing either for destruction or archiving. Moreover, s.128(3) of the YCJA makes it clear, contrary to the Crown’s submission, that while there is a discretion either to destroy or archive the records, there is no discretion to do neither. Section 128(3) of the YCJA states:

(3) All records kept under subsection 115(3) shall be destroyed or, if the Librarian and Archivist of Canada requires it, transmitted to the Librarian and Archivist, at the end of the applicable period set out in section 119 or 120.

(emphasis added)

[18] In any event the Crown’s submission at its highest can only support the retention of young offender records but not access to them beyond the limits established by s.119 of the YCJA.

[19] The Supreme Court in R. v. R. C., 2005 SCC 61, [2005] 3 SCR 99 has made it clear that the police have finite access to the fingerprints of young persons. At paragraph 40, Justice Fish said the following:

Both the YOA and the YCJA protect young persons from publication of their identities. Both emphasize rehabilitation rather than punishment, and both require the destruction of youth records after a finite period.

[20] Finally, while the evidence of Ms. Liss discloses that the applicant's young offender fingerprints and identifying records were sealed by the Biometric Unit of the AFIS within the Intel book system utilized by AFIS, this measure had no practical effect in preventing access to the police, who utilized the fingerprint in order to effect the arrest of the applicant.

[21] On the evidence it would appear that the fingerprint was obtained as a matter of course, as there is no mechanism in the system utilized by the police to prevent access as mandated by the provisions of the YCJA and, in particular, s.119(2)(c) of that Act.

[22] In my view, the evidence adduced on the voir dire discloses unlawful access to the fingerprint and identifying records of the applicant, contrary to the provisions of the YCJA which, in turn, constitute an unreasonable and unlawful search within s.8 of the Charter.

[23] It next falls to determine whether the evidence should be excluded under s.24(2) of the Charter. The decision of The Supreme Court of Canada in R. v. Grant, [2007] 2 S.C.R. 333 requires the Court to examine the following three factors to determine whether on balance, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. Those factors are first, the seriousness of the Charter infringing state conduct; two, the impact of the breach on the Charter protected interests of the accused; and three, society's interest in the adjudication of the case on its merits.

[24] Dealing first with the seriousness of the breach, while the TPS differentiated youth fingerprints and identifying documents by sealing this information, such action had no practical effect whatever in limiting access. The actions of the police in accessing the applicant's fingerprints obtained while a young person and associated identification records, is not the product primarily of isolated mistakes and the inadvertence of individuals who accessed the fingerprint or the information, but rather this breach of the applicant's rights under s.8 of the Charter is aptly described as institutional, or systemic indifference that has resulted from longstanding policies.

[25] While the complexity of the provisions of Part 6 of the YCJA must be acknowledged, the provisions regarding access are crystal clear, as is the view of the Supreme Court that access is finite. I am unable in the circumstances to conclude that the nature of compliance with those provisions can be characterized as done in good faith. Secondly, the impact of the breach on Charter protected rights. From the decision of the Ontario Court of Appeal in R. v. Dore, [2002] O.J. No. 2845 (C.A.) it is clear that there is a significant expectation of privacy in respect of fingerprint records and identifying documents, even with respect to adult offenders. The authorities are also clear that the reasonable expectation of privacy is enhanced with respect to young offenders in regard to such records.

[26] Three, the societal interest in a trial on the merits. In my view, there is a very high societal interest in a trial of the merits of this serious offence involving an aggravated assault in which the victim was shot in the head and in the leg. Moreover, the fingerprint is very cogent and reliable evidence. Indeed, along with the statement of the accused confirming his presence at the scene, it is the only evidence pointing to the guilt of the accused.

[27] If the evidence is excluded, as well as the derivative statement, the Crown has no case. However, the authorities also instruct this Court to look at the long term impact of the police conduct on the reputation and integrity of the justice system, especially in circumstances where the penal stakes are high for the applicant.

[28] The Crown contends that this Court should consider that the fingerprint and the identification records were discoverable by virtue of a judge's order under s.123. With respect, this is the equivalent of attempting to justify a warrantless search by asserting that a warrant could have been obtained and accordingly, I cannot accept that submission.

[29] The seriousness of the offence militates in favour of the inclusion of the evidence. However, after anxious consideration, I have determined that a consideration of the first two Grant factors strongly militates towards exclusion. In particular, given that the breach of the applicant's s.8 Charter rights results from a serious systemic institutional indifference to the provisions of the YCJA, as well as the view of The Supreme Court in R. v. R.C., supra, that the identities of young persons be protected and that access to information regarding fingerprints and records revealing a young person's identity be finite.

[30] Accordingly, and with some reluctance, I have determined that the long term reputation of the justice system requires that the evidence be excluded in this case.

THEN J.

RELEASED: February 21, 2017