COURT FILE NO.: YC-20-8000000-5-0000
YC-20-8000000-6-0000
DATE: 20210428
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.I.
M. Cole and P. Santora, for the Crown
M. Salih and E. Brownscombe, for T.I.
HEARD: 23-24 February 2021
PUBLICATION BAN:
s.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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
s. 129. 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:
- OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) .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.
s.a.Q. akhtar j.
RULING ON NORTH BAY COURTHOUSE PHOTOS
FACTUAL BACKGROUND AND OVERVIEW
[1] The applicant is charged with second degree murder of a young man with a firearm which took place on 30 May 2018 near Dundas Square in the city of Toronto. A full description of the allegations can be found in the related ruling of R. v. T.I., 2021 ONSC 2608.
[2] Seizure of the shooting video was sent around the province as part of a police bulletin. One officer who worked for the Durham Regional Police Service contacted the Toronto police and informed them that he had images of the shooter taken from a cell phone in an unrelated investigation. On further investigation, the police turned their attention to the applicant as the prime suspect in the case.
[3] As a result, officers in the city of North Bay were tasked with obtaining an image of the applicant who was dealing with criminal matters in the North Bay courthouse.
[4] A police officer, Detective Constable Bradley Reaume, attended the courthouse as the applicant waited for his case to be called. Reaume sat on a bench behind the applicant and surreptitiously took a picture of him.
[5] The Crown seeks to lead the image at trial so that the jury can compare the applicant’s likeness to that of the shooter caught on the Dundas Square shooting video.
[6] The applicant seeks exclusion arguing that his ss. 7 and 8 Charter rights were breached when officers took the photo.
[7] In response, the Crown argues that since there was no reasonable expectation of privacy in the courtroom, the applicant’s s. 8 rights were not engaged. Moreover, the Crown denies the violation of the applicant’s s. 7 rights.
ANALYSIS
[8] The applicant submits that reasonable expectation of privacy in a courtroom derives from two statutory sources as well as legal jurisprudence.
[9] First, he argues that s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43, confers an expectation of privacy by prohibiting the use of an image recording device in a courtroom.
[10] Section 136(1) of the Courts of Justice Act provides:
136(1) Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,
(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing;
(b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or
[11] Subsection (3) creates an exemption where judicial authorisation is granted for certain purposes. Failure to abide by the section results in a criminal offence punishable by fine or imprisonment.
[12] Secondly, the applicant submits that ss. 110-129 the Youth Criminal Justice Act, S.C. 2002, c.1, regulates the taking of photographs of young persons in connection with an offence along with the conduct of proceedings and its disclosure.
[13] Finally, the applicant relies on the Supreme Court of Canada’s decision in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, where the Court found that a person filmed for voyeuristic purposes had an expectation of privacy within the meaning of s. 162(1) of the Criminal Code, R.S.C. 1985, c. C-46, thereby rendering any voyeuristic recordings with a sexual element subject to criminal proceedings.
[14] I reject the applicant’s submissions that he had a reasonable expectation of privacy based on any of these sources.
[15] The concept of reasonable expectation of privacy is governed by the principles set out in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, where, at para. 45, the Supreme Court of Canada laid down the following non-exhaustive list of criteria to establish whether a Charter claimant had a reasonable expectation of privacy:
(i) presence at the time of the search;
(ii) possession or control of the property or place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
[16] I find that none of these factors are engaged in any meaningful way in this case.
[17] The courtroom is a public setting accessible to all members of the public. An accused’s name is announced, the charges and details of an offence, the accused’s criminal record and personal history are all matters that would be openly discussed depending on the proceeding. All matters are recorded for potential later use. There could not be any expectation of privacy in this setting.
[18] The purpose of s. 136(1) of the Courts of Justice Act is not to confer privacy of those in the courtroom but to ensure “the maintenance of order and decorum in the courtroom and courthouse and the protection of unimpeded access to and from the courtroom by participants in court proceedings”: R. v. Dunstan, 2017 ONCA 432, at para. 53. As previously described, the prohibition is not absolute: a judge may permit recordings subject to the conditions set out in s. 136(3) of the Courts of Justice Act.
[19] Nor does the Youth Criminal Justice Act prohibit photography of an accused in the courtroom or during proceedings. Instead, it proscribes the publication of anything that might lead to the disclosure of the identity of an accused or other young person involved in the proceedings.
[20] Finally, the applicant’s reliance on Jarvis is misconceived. As I have already observed in a related ruling, Jarvis was concerned with a complainant’s reasonable expectation of privacy as it related to the fault element contained in s. 162(1)(c) of the Criminal Code: it did not expand the Charter definition described in Edwards.
[21] For these reasons, I find that the applicant had no reasonable expectation of privacy when seated in the North Bay courtroom.
[22] I also reject the defence argument that the applicant’s s. 7 Charter rights were violated when his photograph was taken in court. There was no self-incrimination or state compulsion in the taking of the photograph. He was simply observed and photographed without his knowledge by Reaume.
[23] However, I conclude that in the interests of trial fairness, I have a residual discretion to exclude the evidence. I am inclined to exercise that discretion in this case.
[24] The wrong in this case did not involve an invasion of privacy or self-incrimination, but rather the failure to comply with a provincial statute forbidding the taking of images without judicial permission. Had the police sought and obtained the proper authorisation there would have been nothing impermissible about their actions. However, they did not do so, and therefore cannot use evidence obtained in contravention of the law. For these reasons, the applicant’s image taken in the North Bay courtroom is excluded and cannot be used by the Crown.
S.A.Q. Akhtar J.
Released: 28 April 2021
COURT FILE NO.: YC-20-8000000-5-0000
YC-20-8000000-6-0000
DATE: 20210428
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.I.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.