Court File and Parties

COURT FILE NO.: 16-01471 DATE: 2017-12-06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDRE EVANS Defendant

Counsel: Amy Barkin and Veronica Puls for the Crown David Parry for the Defendant

HEARD: November 23, 2017

RULING ON CERTIORARI APPLICATION BOSWELL J.

Introduction

[1] On June 30, 2017, I convicted Mr. Evans of a number of offences including human trafficking, assault, harassment, possession for the purpose of trafficking in cocaine and marijuana and firearms offences. A sentencing hearing is scheduled for December 28, 2017.

[2] Mr. Evans is an adult offender. He has a youth record. The Crown wants to use his youth record as an aggravating factor on sentencing. But youth records are not always readily available.

[3] Access to youth records is governed by s. 119 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”). The YCJA restricts when and by whom youth records may be accessed. It creates prescribed periods during which identified parties, including the Attorney General, may readily access the records. When the prescribed periods end, however, access to the records is significantly limited.

[4] It is common ground that the prescribed access period relative to Mr. Evans’ youth records has expired.

[5] Section 123 of the YCJA establishes a procedure by which an interested party may apply to a youth court justice for an order permitting access to and use of a youth record after the prescribed access period has closed. The Crown applied under this provision for access to Mr. Evans’ records. On September 8, 2017, Halikowski J. authorized the release of the records to the Crown for use on Mr. Evans’ sentencing hearing.

[6] Mr. Evans applies to this court for orders in the form of prohibition and certiorari, preventing the release and use of his youth records. In the alternative, he asks this court to exclude the youth records from evidence at his sentencing hearing on the basis that their admission will compromise his right to a fair trial.

Prohibition and Certiorari

[7] Prohibition and certiorari are prerogative writs that developed over time as mechanisms by which superior courts exercise control over inferior courts. They are two of five extraordinary remedies expressly recognized by the Criminal Code of Canada; the others being habeas corpus, procedendo and mandamus: s. 774.

[8] An order in the nature of prohibition is essentially a direction to an inferior court to cease exercising a jurisdiction it is not entitled to. In my view, it has no role to play in the current proceedings. The order of Halikowski J. arose on a Crown application that was a discrete event. It is completed. Since there is no ongoing proceeding in the Ontario Court of Justice, there is nothing left to prohibit.

[9] An application for certiorari involves a judicial review by the Superior Court of a decision made by a judge of an inferior court. An order in the nature of certiorari will generally be made only where the inferior court has exceeded its jurisdiction, has breached the rules of natural justice or has engaged in fraud or collusion. Certiorari may also be utilized to correct an error on the face of the record. See R.E. Salhany Q.C., Canadian Criminal Procedure, loose-leaf (2016 rel.), 6th ed., (Toronto: Thomson Reuters Canada Ltd., 2016), ¶10.270.

The Issues

[10] There is no suggestion that the youth court justice engaged in fraud or collusion. There is also no suggestion that the rules of natural justice were breached. The debate between the parties focuses on three questions:

1. Did Halikowski J. exceed his jurisdiction?
2. If he did, what order is appropriate?
3. Even if certiorari is not granted, should the court exercise its residual discretion to exclude Mr. Evans’ youth record on the basis that it will impair his fair trial right?

Analysis

1. Was there an excess of jurisdiction?

The Parties’ Positions

[11] Mr. Evans submits that Halikowski J. lacked or exceeded his jurisdiction through legal error in granting access to the youth records and by permitting disclosure of those records to this court for sentencing purposes.

[12] More generally, Mr. Evans argues that the prevailing circumstances are such that the interests of justice require the granting of certiorari. Those circumstances include, he says, the fact that there is no clear appellate mechanism or other procedural route to challenge the order of the youth court justice. He contends, moreover, that it makes more sense to adjudicate the issue now, rather than through appeal following sentencing.

[13] The Crown urges the court to reject the application on the basis that no jurisdictional question has been raised. A jurisdictional question relates to the court’s authority to determine an issue, not whether it determined the issue incorrectly. The Crown contends that Mr. Evans’ application is really about the correctness of the decision of the youth court judge.

The Governing Principles

[14] Watt J., as he then was, described jurisdictional error in R. v. Gray (1991), 68 C.C.C. (3d) 193 (Gen. Div.), at para. 35, as follows:

Jurisdictional error is not to be equated with error of law. By jurisdiction is meant the authority to decide a case, to determine an issue. Its essence is the authority to determine the issue, not the nature or correctness, actual or perceived, of the determination made. See, for example, Belgo Canadian Pulp & Paper Co. v. Court of Sessions of Peace of Three Rivers (1919), 33 C.C.C. 310, 56 Que. S.C. 164 (C.A.). A court of limited jurisdiction either has jurisdiction over a particular subject-matter or it lacks it. Jurisdiction is not only held or retained when the court is right in its determination, only to be lost when it is wrong. It has often and rightly been said that, in a matter within its jurisdiction, a court of limited jurisdiction may misconstrue a statute (other than an enabling statute) or otherwise misdecide the law as freely and with as high an immunity from correction, except on appeal, as any other judge or court. See, for example, Long Point Co. v. Anderson (1891), 18 O.A.R. 401 (C.A.).

[15] Even where a jurisdictional issue arises, the granting of an extraordinary remedy, including certiorari, remains discretionary. The discretion is to be invoked sparingly when proceedings remain ongoing. As Doherty J.A. observed in R. v. Johnson (1991), 64 C.C.C. (3d) 20, at para. 7:

…[I]ssues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should routinely be raised and resolved within the confines of the established criminal process which provides for a preliminary inquiry (in some cases), a trial, and a full appeal on the record after that trial.

[16] Justice Doherty went on to explain the rational for a non-interventionist policy:

Such applications can result in delay, the fragmentation of the criminal process, the determination of issues based on an inadequate record, and the expenditure of judicial time and effort on issues which may not have arisen had the process been left to run its normal course. The effective and efficient operation of our criminal justice system is not served by interlocutory challenges to rulings made during the process or by applications for rulings concerning issues which it is anticipated will arise at some point in the process. A similar policy is evident in those cases which hold that interlocutory appeals are not available in criminal matters. (Para. 8; internal citations omitted).

Discussion

[17] In my view, the remedy of certiorari is not available to Mr. Evans because, simply put, Justice Halikowski had the jurisdiction to make the order that he made. Mr. Evans’ application is, in pith and substance, an appeal of that order. The thrust of the application is that the decision was wrongly made, not that the judge was without jurisdiction to make it.

[18] Section 123(1) of the YCJA provides that a youth court justice may authorize the release of a youth court record to a person with a valid interest in it, where the justice is satisfied that it is in the interests of the proper administration of justice to do so.

[19] As Doherty J.A. stated in L. (S.) v. B. (N.), 2005 CarswellOnt 1417, at para. 54,

…Parliament in “clear and unambiguous terms” has placed the responsibility for determining access to records on the shoulders of the youth justice court judges. This makes sense. Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

[20] Justice Halikowski is a youth court justice. He was satisfied that it was in the interests of the proper administration of justice to release Mr. Evans’ youth records to the Crown and accordingly made the impugned order. He had the jurisdiction to do so.

[21] Mr. Evans’ counsel argued that the youth court justice exceeded his jurisdiction by going beyond authorizing access and instead authorizing that the records be disclosed to the Crown for use on a sentencing hearing. He suggested that such a use is improper.

[22] I am not persuaded that there is any loss of jurisdiction in the circumstances. I do not put any weight on the distinction between “access” and “disclosure” in this case. It was clear that the Crown sought the records for use on sentencing before this court. The youth court justice was well aware of that proposed purpose. He crafted an order designed to limit the disclosure of the records beyond the specific purpose for which they were ordered released. It is not, in my view, improper for this court to consider the record, once released to the Crown, as a factor on sentencing.

[23] Mr. Evans’ counsel also cited the recent decision of Justice Then in R. v. O., 2017 ONSC 1213, as support for the assertion that the youth court loses the jurisdiction to release youth court records once the offender is an adult. In R. v. O., the accused was charged with aggravated assault. Identity was apparently a live issue. The police accessed his fingerprints taken when he was a young offender. They did so outside of the access period prescribed in the YCJA and without having sought an order for access under s. 123(1). The accused sought to exclude the fingerprint evidence under s. 24(2) of the Charter.

[24] Justice Then stated, in obiter, that in his view, s. 123(2) of the YCJA restricts the availability of an access order under s. 123(1)(a) to the records of a young person, only while the person remains a young person.

[25] With the greatest of respect, I do not agree. I frankly find s. 123(2) to be a real challenge to make sense of. I do not agree, however, that it signals that a young person’s 18th birthday is a drop dead date for any access to his or her youth records. If that were the case, the drafters of the legislation surely would not have relied on the tortured language of s. 123(2). Instead, they would have clearly indicated in s. 119(2) – under the heading “Period of Access” – that any prescribed period of access to youth records terminates once the particular youth turns 18. As it stands, one could easily envision a prescribed access period running well past a young person’s 18th birthday given the existing language of s. 119(2). Moreover, if no one is entitled to access the youth records of an offender after his or her 18th birthday for any reason, one might reasonably expect that the Act would mandate the destruction of the records once the youthful offender reaches the age of majority.

[26] Notwithstanding the decision in R. v. O., I remain of the view that the youth court justice acted within his jurisdiction to make the order he made in this instance. In the result, the extraordinary remedy of certiorari is not available. This is not, in any event, in my view, the type of case where the interests of justice necessitate the granting of certiorari. Mr. Evans will have recourse to the established criminal process (i.e. the Court of Appeal) in due course.

[27] My decision on this first issue obviates the need to address the question of what order would have been appropriate had I found that the youth court justice had exceeded his jurisdiction. I will go on, in the circumstances, to address Mr. Evans’ request that I exercise my residual discretion to exclude evidence that will have the effect of compromising his right to a fair trial.

2. Will the use of Mr. Evans’ youth record offend his right to a fair trial?

The Parties’ Positions

[28] As an alternative to the remedy of certiorari, Mr. Evans asks that this court exercise its residual discretion to exclude evidence that will impair trial fairness and exclude his youth record from the sentencing proceedings.

[29] Defence counsel described the potential of Mr. Evans’ youth record to impair trial fairness as arising from the profound intrusion on his rights to privacy and dignity that the use of those records will entail. He urged the court to consider the overarching purposes of the YCJA: the rehabilitation of youthful offenders and the protection of their privacy. These purposes, he submits, have a constitutional dimension to them. Permitting the Crown to introduce a record of an offence committed by Mr. Evans when he was a youth will undermine those purposes, intrude on his constitutionally protected right of privacy and thereby impair the fairness of his trial.

[30] Crown counsel agrees that the court always has a residual discretion to exclude prejudicial evidence, but urges the court not to invoke that discretion in this instance. They rely on the conclusion of Halikowski J. that the public safety interest engaged here outweighs Mr. Evans’ privacy interest in the record.

The Governing Principles

[31] As a general rule, evidence is admissible in a criminal proceeding provided it is relevant, material and not subject to any specific rule of exclusion: R. v. Candir, 2009 ONCA 915, at para. 46.

[32] Mr. Evans relies on the court’s residual discretion to exclude otherwise relevant and material evidence in certain circumstances.

[33] Justice LaForest described the court’s residual discretion in a dissenting opinion in R. v. Corbett, [1988] 1 S.C.R. 670, at para. 98:

The organizing principles of the law of evidence may be simply stated. All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[34] Obviously evidence that undermines an accused person’s constitutional right to a fair trial is evidence that falls under the ambit of the court’s residual discretion to exclude. The accused’s right is, I note, to a trial that is fundamentally fair, and not one that is a model of perfect fairness. It is one that “satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused”: R. v. Harrer, [1995] 3 S.C.R. 562, at para. 45.

[35] As McLachlin J., as she then was, observed in concurring reasons in R. v. Harrer, as above, at para. 44, “Whether a particular piece of evidence would render a trial unfair is often a matter of some difficulty.” She noted that unfairness could arise for a number of reasons, including, but clearly not limited to:

(a) Where evidence was obtained in an manner that makes it unreliable; (b) Where the potential of the evidence to mislead the trier of fact outweighs its probative value; or, (c) Where the police have acted in an abusive fashion which may taint the trial.

Discussion

[36] I accept that the core principles of the YCJA include rehabilitation and the protection of the privacy of young persons. Justice Molloy described these principles in R. v. Sheik-Qasam, 2007 CarswellOnt 7988 (S.C.J.) at para. 8:

In the YCJA, and its precursor the Young Offenders Act, R.S.C. 1985, c. Y-1 ("YOA"), Parliament sought to balance the protection of society from young people who are wrongdoers against the special circumstances of offenders who are immature and without the degree of responsibility expected of adults. While recognizing the importance of holding young people accountable for their misdeeds, the legislation provides special safeguards to facilitate the rehabilitation of young people and their reintegration into society. In particular, the legislation protects the privacy of young offenders and, after a suitable passage of time, enables them to proceed into adulthood without the stigma of a criminal record based on youthful indiscretions.

[37] I also accept that there is a constitutional dimension to a young person’s right to privacy. The Supreme Court has recognized as much in A.B. v. Bragg Communications Inc., 2012 SCC 46, where Abella J. cited, with approval, the following passage from the decision of Cohen J. in Toronto Star Newspaper Ltd. v. R., 2012 ONCJ 27 (Ont. C.J.):

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy”, is “essential for the well-being of the individual” and is “at the heart of liberty in a modern state” (para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under sections 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.

[38] Like all rights, however, Mr. Evans’ right to privacy is not absolute. It is an aspect of the s. 7 right to life, liberty and security of the person and it is necessary therefore to assess whether Mr. Evans’ privacy has been intruded upon in a way that is not in accordance with the principle of fundamental justice.

[39] There are many different aspects to the principle of fundamental justice. They frequently come into conflict with one another. Competing interests must be balanced against one another to determine what any particular context demands. See R. v. White, [1999] 2 S.C.R. 417.

[40] In this instance, Mr. Evans’ right to privacy is an aspect of fundamental justice. So is society’s interest in the search for truth, which generally supports the availability to the trier of fact of all relevant evidence. So too is society’s interest in safety and security.

[41] The requisite balancing of these interests was engaged in by Halikowski J. when this matter was before him as a youth court justice. He properly recognized that Mr. Evans’ right to privacy must be balanced against the security interests of the general public. He concluded that, in light of the seriousness of the offences committed by Mr. Evans, priority must be given to the security interests of the general public.

[42] I agree with his conclusion. In this case, Mr. Evans’ interest in being shielded from his youth record as an aggravating factor on sentencing must give way to society’s interests in getting at the truth and in safety and security.

[43] In my view, the intrusion on Mr. Evans’ privacy interests is modest. It can be protected through the use of a ban prohibiting the publication of any information that may identify Mr. Evans.

[44] This court is also mindful of the age of Mr. Evans at the time he acquired his youth record. The reduced moral culpability of a young person may be factored into the assessment of the aggravating nature of the prior offence.

[45] In the result, the application is dismissed.

Boswell J. Released: December 6, 2017