COURT FILE NO.: CR-18-951

DATE: 2019 09 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

M. Stevens, for the Respondent

• and -

TYLER ALSTON

Applicant

H. Saini, for the Applicant

HEARD: March 5, 2019

REASONS FOR RULING

BARNES J.

INTRODUCTION

1Mr. Alston’s Application to exclude evidence due to a breach of his s. 8 Charter rights is granted. The fingerprint evidence obtained as a result of the breach is excluded pursuant to s. 24(2) of the Charter. I rendered the decision with reasons to follow, and these are my reasons.

BACKGROUND FACTS

2Tyler Alston is charged with the following offences under Criminal Code of Canada: robbery; theft over $5,000; wearing a disguise with intent to commit an indictable offence; and careless storage of two firearms – a .22 calibre rifle and a 12-gauge shotgun. Mr. Alston is alleged to have committed these offences on October 26 and November 8, 2016.

3On October 26, 2016, a man walked into a bank in Toronto. He approached the bank teller and gave her a note. The note instructed the teller to give him the money in her till. She complied. The male fled, leaving behind the note and a rubber glove.

4Constable Derouet found four fingerprints at the crime scene. One print was on the note. This print was compared to fingerprints stored in the Royal Canadian Mounted Police (RCMP) Automated Fingerprint Identification System (AFIS). Tyler Alston’s fingerprints were stored in AFIS and matched the fingerprint on the note. Mr. Alston’s prints were obtained when he was charged with criminal offences as a young person.

5The police conducted surveillance on the last known address of Tyler Alston. They checked the licence plate of a vehicle in the driveway of his house. The licence plate belonged to Shanique McCalla. Ms. McCalla was the bank teller who received the note from the bank robber. The police observed Ms. McCalla leaving Mr. Alston’s residence and entering her car.

6Police obtained a search warrant and searched Mr. Alston’s residence and Ms. McCalla’s vehicle. A large amount of Canadian and American currency was found in a safe located in the residence. A picture book containing grade school pictures of Ms. McCalla and three guns were also found in the residence. Police allege that two of the guns were stored carelessly. None of the guns were used in the robbery.

DISCUSSION/ANALYSIS

Position of the Defence

7Mr. Alston submits that the retention period of fingerprints under the Youth Criminal Justice Act (the Act) has expired. He submits that ss. 123 and 124 of the Act therefore apply, which require Peel Regional Police to obtain a judge’s order to access the fingerprints. Peel Regional Police Service did not obtain a judge’s order and, thus, acted unlawfully.

8Secondly, once the access period expired, the RCMP were required under s. 128(3) of the Act to destroy Mr. Alston’s prints or – should the Librarian and Archivist of Canada request them – send the fingerprints to the Librarian and Archivist of Canada. The RCMP failed to comply with this statutory direction and therefore the RCMP’s retention and use of Mr. Alston’s prints is unlawful.

Position of the Crown

9The Crown submits that s. 118(1) of the Act expresses Parliament’s clear intentions to prevent disclosure of information that the person has been previously dealt with under the Act. Section 113 of the Act and s. 2 of the Identification of Criminals Act (ICA) authorizes the police to share fingerprint information for law enforcement purposes. I agree with this characterisation of the legislative scheme.

10Section 128(5) of the Act and s. 6(2) of the Criminal Records Act (CRA) require that information about a young person in a crime scene information bank be dealt with in the same manner as an adult. This is a prohibition against releasing information stored in an information bank that would identify the person as a someone who was previously dealt with under the Act. It was not Parliament’s intent to prohibit law enforcement agencies from sharing of crime scene identification information.

11The Crown submits that Peel Regional Police acted in accordance with the statutory scheme and the RCMP did not provide information which identified Mr. Alston as a person who had previously been dealt with under the Act. Police actions were thus lawful and, therefore, there is no s. 8 Charter breach.

Peel Regional Police

12I agree with the Crown’s submission that Peel Regional Police Service acted in accordance with a statutory scheme that permits them to access records held by the RCMP: s. 115(3); s. 120(1)(e), (2) of the Act; and s. 6(2) of the CRA. The information received by Peel Regional Police did not identify that Tyler Alston was a person previously dealt with under the Act: s. 110(1), s. 118 of the Act.

13For reasons articulated below, I am satisfied that the statutory access period had expired when the RCMP resorted to AFIS to answer the inquiry from the Peel Regional Police Service. Thus, Peel Regional Police Service was required to apply to a youth court judge for authority to access the fingerprints: ss. 123 and 126 of the Act.

14The fact that the access may have, or had, expired was unknown to Peel Regional Police. This police service did not know that the fingerprint was a youth record. On these facts, under a R. v. Grant s. 24(2) Charter analysis, I would not exclude such an inadvertent s. 8 Charter breach. The crucial question is whether the RCMP unlawfully retained Mr. Alston’s fingerprints in the AFIS database.

Statutory Interpretation

15This case involves the interpretation of the relevant provisions of Part 6 of the Act in the context of an alleged s. 8 Charter breach. The Supreme Court of Canada in R. v. G.(B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at paras. 40-42, describes a framework for such interpretations:

1. If Parliament intends to proscribe the use of applicable common law principles, it must expressly say so;

2. Absent a compelling reason to the contrary, legislation must be interpreted in accordance with the objects of the legislation; and

3. Legislation must be interpreted in a manner consistent with the Charter.

Common Law

16The Act does not require the consideration of any common law principles.

Parliament’s Objective

17Recognizing the reduced level of maturity of young persons, the Act enshrines the principle of diminished moral blameworthiness or culpability of young persons in relation to adults. It also stresses fairness, proportionate accountability, rehabilitation and reintegration of young persons dealt under the Act: s. 3 (1) of the Act. The Act shall also be liberally construed in accordance with the principles set out in s. 3(1): s. 3(2) of the Act.

18The overarching objective of the Act is to afford “a greater protection to young people and recogni[ze] that young persons are entitled to a presumption of diminished moral culpability because of their reduced maturity”: s. 3 of the Act; R. v. G. B., [2010] O.J. No. 1521, at para. 16.

19Part 6 of the Act sets out rules for keeping and using the records of young persons. The object of Part 6 is to prohibit the publication of and access to the name or any information related to a young person which “would identify the young person as a person dealt with under [the] Act”, subject to the exception set out in Part 6: s. 110(1); s. 118(1) of the Act.

20The ICA applies to young persons. The provisions of the ICA shall be applied to young persons in the same way as they apply to adults: s. 113(1) of the Act.

21Police investigating any offence allegedly committed by a young person may keep the original or copy of the young person’s fingerprints and may provide such a record to the RCMP. If the young person is convicted of an offence, then the Police Service shall provide a record of the young person’s fingerprints to the RCMP: s. 115(1) – (2) of the Act. The RCMP shall keep such records in a central repository designated for “keeping criminal history files or records of offenders or keeping records for the identification of offenders”: s. 115(3) of the Act. AFIS is maintained by the RCMP pursuant to s. 115(3) of the Act.

22Section 119(1) of the Act prohibits access to, and the use of, youth records except under strict terms. The class of persons who may receive access includes police officers. This access and disclosure is subject to strict time limits which are aptly summarized in R. v. G.B. (2010), O.J. No. 1521, at para 19, as follows:

There is a three-year limit to access and use of the records created and kept by any police force and a maximum of eight years to access and use records kept by the R.C.M.P. in their Central repository. The time runs in both cases from the date of conviction where a conditional sentence is imposed. Included in the exceptions is access by any peace officer for law enforcement. It must be remembered however that the records contained in the Central repository are the records created by the force who originally investigated the crime. The record must only be destroyed after the period of 8 years has elapsed.

23Mr. Alston’s evidence on his criminal antecedents is unchallenged. He was charged on three occasions as a young person. These charges generated fingerprints that were retained by the RCMP in AFIS. On the first occasion, he was 14 years old. These charges were either stayed or withdrawn after he completed extrajudicial measures (EJM) under s. 4-10 of the Act. The access period to these prints expired two years after he agreed to participate in the EJM or two months after his charges were withdrawn: ss. 119(2)(a) – (b) of the Act.

24The second set of charges was when Mr. Alston was between 14-16 years old. He was charged with breach of his recognizance. He was found guilty and sentenced to probation. This is a hybrid offence and, without a Crown election, s. 121 of the Act deems it to be a summary conviction offence. There is no evidence the Crown elected otherwise. I will assume the Crown proceeded by summary conviction, therefore, the access period expired three years after the sentence was imposed: s. 119(2)(f), (g) of the Act. If the Crown proceeded by indictment, the period is five years after sentence: s. 119(2)(h)(j) of the Act.

25The last charge was robbery. This charge was withdrawn before Mr. Alston’s 18th birthday. The access period expired two months after the charges were withdrawn: s. 119(2)(a) of the Act.

26Section 120 of the Act sets additional access periods for youth records kept by the RCMP. The fingerprints kept under AFIS records are captured by these provisions. Police officers investigating offences are granted access to fingerprint records kept by the RCMP: ss. 120(1)(e) and 120(2) of the Act. For indictable offences, in addition to the access period stipulated in ss. 119(2)(h) to (j) of the Act, s. 120(3)(a) increases the access period by five years for RCMP youth records kept pursuant to s. 115(3) of the Act.

27As noted, Mr. Alston was previously charged with offences as a young person. Only one charge, breach of probation, resulted in a conviction. He was 16 years old at that time. I have assumed that the Crown proceeded summarily, therefore, the access period expired when he was 19 years old. Mr. Alston is now 27 years old. He has no arrests or convictions as an adult. He was 25 years old at the time of these allegations.

28Section 128 provides rules for the destruction and disposition of records. It also imposes prohibitions on how those records may be used or disclosed. Section 128 is summarized in R. v. G.B., [2010] O.J. No. 1521, at para. 24, as follows:

Subsection 128(1) provides a blanket prohibition on use of record except by court order or two other circumstances irrelevant to this case. Subsection 128(2) provides that a record created by a police force must be either destroyed or sent to the Archives of Canada. Section 128(3) provides that the record in the Central Repository shall be destroyed or sent to the Archivist. Subsection 128(4) provides that the R.C.M.P. shall remove a record from any automated criminal conviction records retrieval system maintained by the R.C.M.P. Finally, Subsection 128(5) provides that a record kept in a system to match crime scene information by the R.C.M.P. may be disclosed in the same manner as information that relates to an offence committed by an adult for which a pardon under the Criminal Records Act (C.R.A.) is in effect.

29The crux of the Crown’s position is that Parliament’s intent to apply applicable provisions of the CRA and IRA to the Act is an attempt to exclude section 115(3) records from the destruction of records provisions of the Act.

30There is no express intent by Parliament to exclude s. 115(3) records from the statutory direction to destroy these records upon expiration of access periods. Under such a circumstance, the Crown’s position conflates access, disclosure and use of youth records with discrete rules setting expiration dates for access, prohibiting access and requiring destruction of records under Part 6 of the Act. There is clear a distinction between disclosure, use, destruction and preservation of youth records. Subsection 128(3) is clear that after expiration of the access period, the RCMP must either destroy s. 115(3) records or – at the request of the Librarian and Archivist of Canada – provide a copy of the records to the Librarian and Archivist of Canada.

31The application of the ICA via subsection 113(1) or the CRA via subsection 128(5) of the Act does not change the clear legislative intent to provide access for a finite period and to require destruction of subsection 115(3) records at the expiration of the access period. Section 3(2) requires a liberal interpretation of the Act to give effect to its objects which are grounded in the “presumption of diminished moral culpability due to [the] diminished maturity” of young persons.

32The ICA and CRA apply during the period the records are accessible under the Act. Such an interpretation is plain and obvious and in accordance with the objects of the Act articulated in s. 3 of the Act. A different interpretation would be contrary to the object of the Act because it would mean the actions of the young person shall follow them into adulthood. Such an interpretation and result is inconsistent with the objects of the Act. If Parliament intends s. 115(3) records to be excluded from the statutory requirement for destruction, it should expressly legislate accordingly.

Section 8 Breach

33This case is distinguishable from R v. G.B., 2010 ONSC 1499. In that case, the O.P.P. submitted fingerprints on robbery notes to the RCMP for identification. The RCMP identified the prints as those of G.B., who argued that the RCMP had unlawfully retained the fingerprints in violation of the Act. The Court held that the eight-year period for retaining the prints had not expired and, therefore, the RCMP had acted lawfully. G.B.’s application was dismissed: G.B. at paras. 19, 23 and 27.

34In the present case, the retention period had expired and the RCMP failed to comply with subsection 128(3) of the Act. At the time the RCMP accessed fingerprints, the prints were unlawfully in its possession. Mr. Alston’s fingerprints were thus obtained unlawfully and in breach of his right to be secure against unreasonable search and seizure. Mr. Alston’s s. 8 Charter rights were breached.

Section 24(2)

35Factors to consider in determining whether the fingerprint evidence should be excluded pursuant to s. 24(2) of the Charter are articulated in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. The first consideration is the seriousness of the breach.

36The Peel Regional Police Service sought access to the fingerprints for a valid law enforcement purpose with no knowledge that the fingerprints were linked to a young person or that the period for the RCMP’s retention of those records had expired. The RCMP are responsible for the AFIS database. The RCMP’s failure to destroy the fingerprints after the expiration of the access period is unlawful. The RCMP’s conduct circumvents the clear intent of Parliament. Unlawful conduct by one law enforcement agency cannot be exempted from scrutiny by the inadvertent participation of another law enforcement agency in the unlawful act. The conduct of the RCMP constituted a serious violation and cannot be condoned by the courts. To do so will undermine public’s confidence in the law and its processes.

37The second consideration is the impact of the breach on Mr. Alston’s Charter-protected interests. The evidence was collected lawfully in an unintrusive fashion, it was a fingerprint left on a note used by the bank robber. The disclosure did not reveal that Mr. Alston was a person previously dealt with under the Act. Any privacy breach was minimal.

38The final consideration is society’s interest in the adjudication of the case on its merits. The fingerprint is reliable evidence. It is the foundation of the prosecution’s case against Mr. Alston, and to exclude it, would essentially gut the Crown’s case. Under this consideration alone, the exclusion of the fingerprint evidence would have a negative impact on the repute of the administration of justice. I must, however, balance all the factors.

CONCLUSION

39These fingerprints were retained unlawfully by the RCMP for several years after the expiration of the access period. On balance, the admission of the fingerprints would bring the administration of justice into disrepute. The fingerprint identification evidence is excluded.

Barnes J.