COURT FILE NO.: CR-21-10000054-00M0
DATE: 20210519
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF a young person under the Youth Criminal Justice Act
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.A.
Applicant
Andrew Hotke, for the Respondent
Richard Fedorowicz, for the Applicant
HEARD: May 18, 2021
justice s. Nakatsuru
[1] The applicant, A.A., seeks judicial review in the form of certiorari of a decision made March 31, 2021. Under s. 123(1)(a) of the Youth Criminal Justice Act (the “Act”), the application justice ordered the release of A.A.’s youth records to the Crown.
[2] A.A. had been put forward as a potential surety for an adult accused, M.A.[^1] Along with other co-accused, M.A. is facing several serious criminal charges. He has been committed to stand trial after a preliminary inquiry. He is now seeking bail on these charges. A.A. is presently an adult. In preparation for M.A.’s bail hearing, the Crown brought this application under s. 123 because in reviewing A.A.’s adult criminal antecedents, it learned that A.A. had a charge of failing to appear that was withdrawn. Based upon A.A.’s age, the Crown concluded that there must be related substantive criminal charge(s) faced by A.A. when she was a young person. However, these youth records fell within the non-disclosure period under s. 119(2) of the Act.
[3] On this judicial review, A.A. argues that the application justice made three reviewable errors.
A. The Absence of an Evidentiary Foundation
[4] A.A. submits that the application justice erred by making the order in the absence of any evidence. I do not agree.
[5] While the Crown applied for the order without an affidavit in support, it was common ground at the hearing what the evidentiary basis for the application was. I note that counsel for A.A. did not make an objection on the basis that there was no evidence on which to properly to hear the application. At the highest, counsel pointed to the “barest” of evidentiary foundations and the “thin” evidentiary record, as a reason for the justice to dismiss the application. However, both Crown and A.A. proceeded on the mutual understanding that a withdrawn adult charge of failing to attend court against A.A. reasonably meant, given her age at the time, that some youth record existed. In addition, the contextual background facts of A.A. proposing to act as a surety for M.A. was not disputed.
[6] Section 123 does not specify the form the evidentiary foundation for such an application to take. Given the circumstances that existed here, no error was committed in relying on the submissions of the Crown. It was accepted by A.A.
B. The Denial of Natural Justice
[7] By happenstance, the application justice was the same preliminary inquiry justice who committed M.A. and others to trial. A.A. was not aware of this until after the completion of her submissions when the justice inquired of the Crown whether M.A. was the same individual he had dealt with earlier.
[8] In deciding to disclose the youth records, the application justice referred to the fact he had the benefit of sitting on M.A.’s preliminary inquiry and that the Crown’s evidence against M.A. was powerful. He listed some of that evidence. The application justice found it significant that A.A. was being offered as a surety on a serious criminal matter of such import rather than on a marginal criminal case. He considered this to be a factor in deciding to disclose the records.
[9] Despite Mr. Hotke’s able submissions, I find that A.A. was denied natural justice.
[10] Natural justice required that adequate notice be given to A.A. that the application justice had heard M.A.’s preliminary inquiry and that a meaningful opportunity be given to A.A. to make submissions regarding the materiality of the preliminary inquiry findings on the issue to be determined under s. 123. Moreover, the application justice found that the evidence against M.A. was strong. He referred to this more than once in his decision to grant the Crown’s request for access. On this judicial review, the Crown has provided to me the committal decision. A.A. did not have this decision before bringing this judicial review. I note that the application justice’s finding that the Crown’s evidence against M.A. was strong or powerful is not to be found in his committal decision. Even if A.A. had access to the committal decision, A.A. would not have known the application justice’s view of the preliminary inquiry evidence without being given a chance to respond to it.
[11] In the alternative, Mr. Hotke submits that even if natural justice was denied, given the discretionary nature of the remedy being sought, the certiorari application should still be dismissed. He submits that no prejudice has been suffered by A.A. as the decision by the application justice would have been no different had A.A. been afforded a fair hearing.
[12] The test I must apply is would the result necessarily have been the same notwithstanding the denial of natural justice: R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.) at para. 26.
[13] I am not persuaded it would be.
[14] In his decision, the application justice viewed the strength of the evidence and the seriousness of the charges faced by M.A. as being relevant to the suitability of A.A. acting as a surety. Hence, it formed an integral part of his reasons in deciding to disclose the records. While I agree that A.A. may not have been able to change the application justice’s view of the strength of the case against M.A., A.A. could well have made effective submissions as to why the strength of the case against M.A. was not determinative to the issue of access.
[15] Access under s. 123 of the Act must meet a stringent test. The Crown must show not only that it has a valid interest in the record, but also a substantial one. In addition, it must show that access is necessary for the proper administration of justice. In assessing whether the test has been met, the application justice must balance a number of competing interests. There is the privacy interest of the young person. In addition, there are broader systemic policy rationales as set out in s. 3, the Declaration of Principle, of the Act. Against this is the interest in ensuring that M.A.’s bail hearing is adjudicated fairly and accurately.
[16] More concretely, in this case, the request for access to youth records relates not to an accused, complainant, or co-accused in the context of a trial on the merits, but to the suitability of a proposed surety. There is a strong argument that A.A. should be entitled to put herself forward as a surety without any indiscretions of her youth continuing to dog her into adulthood. Even adult criminal records do not per se disqualify someone from acting as a surety. Had A.A. been given an opportunity to do so, she could have made effective submissions that regardless of the strength of the Crown’s case, something that could be properly canvassed at the bail hearing, neither the issue of A.A.’s suitability as a surety nor the issue of permitting access to her youth records, depended upon that. Put differently, the balancing of the various factors in deciding the access issue was substantially divorced from the consideration of the strength of the Crown’s case against M.A.
[17] All of this is to say that there resides in the justice hearing an application of this kind a considerable degree of discretion. This is very unlike a judicial review of a committal to stand trial after a preliminary inquiry where the test for committal is clear, the record to consider is complete, and a reviewing justice can readily determine if the result would have been affected by a denial of natural justice. Such was the case in Papadopoulos.
[18] The same conclusion cannot be made here. For this reason, the applicant must succeed.
C. Failing to Address the Reason for the Crown’s Request for Access
[19] A.A. submits that the application justice erred by determining that the character, credibility and the suitability of A.A. as a surety were relevant factors to consider. A.A. submits that the Crown only sought the youth record on the basis that the record may be relevant to the primary ground for the release of M.A.
[20] Even assuming the application justice went beyond the reason stated by the Crown in seeking A.A.’s records, this does not amount to a jurisdictional error. Moreover, I would have thought it to be self-evident that the suitability of A.A. as a potential surety would be a factor for the justice to consider in assessing the merits of the Crown’s request.
[21] I reject this argument.
D. Disposition
[22] Both counsel agree that the proper disposition in light of A.A.’s success would be the quashing of the order. I was advised that M.A.’s bail hearing has already started. It might well be that different sureties are now being put forward. Nonetheless, the application justice’s order still stands so I find it right that it be quashed. It will be left up to the Crown to decide whether it wishes to bring another s. 123 application to seek access to the records.
Justice S. Nakatsuru
Released: May 19, 2021
COURT FILE NO.: CR-21-10000054-00M0
DATE: 20210519
IN THE MATTER OF a young person under the Youth Criminal Justice Act
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.A.
Applicant
REASONS FOR JUDGMENT
NAKATSURU J.
Released: May 19, 2021
[^1]: Although M.A. is an adult accused, I have initialized his name out of an abundance of caution in order to ensure protection of the identity of A.A. and to comply with the s. 110 order made under the Act to prevent the publication of her identity.