ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-20-10000202-0000
DATE: 20210809
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYLO ROBINSON, REBECCA HORTON AND TYLER VICKERS
M. Gharabaway, for the Crown
M. Little, for Mr. Robinson
C. Sheppard, for Ms. Horton
R. Moriah, for Mr. Vickers
HEARD: 28 April 2021
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
The Allegations
[1] Daylo Robinson and Rebecca Horton, the applicants stand charged with related offences of human trafficking and sexual assault with respect to a complainant hereinafter referred to as D.
[2] Sometime in March 2018, D arrived at the Motel 6 located in the city of Mississauga to work as an escort. She was accompanied by a female hereinafter referred to as X and another male. Both were there to assist D find clients. When she arrived at the Motel 6, she contacted Josh Scanlan, a friend, who introduced her to Mr. Robinson.
[3] When Mr. Robinson enquired about D’s presence at the Motel 6, D admitted to working as an escort and making money “with this people”. Mr. Robinson told D that he could make her “so much more money”. When D asked how, he answered: “let’s go deal with the people then and I make you more money”. D understood this to mean that Mr. Robinson was going to talk to X, although she did not know for certain.
[4] Mr. Robinson and Mr. Scanlan went to X’s hotel room while D stayed next door in Mr. Robinson’s room. Shortly afterwards, D heard Mr. Robinson yelling loudly. In response, she went to X’s room to make sure everything was “okay”. She saw Mr. Robinson remove a baton from his pocket and strike X in the face while telling her to “shut up”.
[5] X became stressed, panicked, and told D that she could go. D returned to Mr. Robinson’s room with him and Mr. Scanlan. She assumed that X had left the Motel 6 because she heard the door
[6] X’s room close and did not hear anyone return.
[7] Mr. Robinson explained that he had someone working at another hotel earning thousands of dollars a day. D was taken by Mr. Robinson and Mr. Scanlan to meet Ms. Horton at that hotel.
[8] When they arrived, Ms. Horton greeted them at the side entrance along with a client and invited D to accompany them to the client’s room, where D consumed a large amount of alcohol. Ms. Horton encouraged D to provide sexual services to the client but D, heavily intoxicated, refused. Ms. Horton became angry and the client departed.
[9] In the days that followed, D was sexually assaulted by Mr. Robinson, Mr. Scanlan and Ms. Horton and was threatened by Mr. Robinson.
[10] D was taken to different hotels and provided with cocaine to ensure her continued work in the sex trade. At some point, Mr. Robinson and Ms. Horton left D with Mr. Scanlan who, following instructions from Mr. Robinson, communicated with and arranged appointments with D’s potential clients.
[11] At one stage, D became intoxicated and passed out. When she woke up, Mr. Scanlan had gone. Mr. Robinson told her that he and Mr. Vickers had beaten Mr. Scanlan and broken his jaw. Shortly afterwards, D left the apartment and contacted 911. D provided a full statement of the allegations to the police on 15 May 2018.
The Peel Occurrence
[12] The Crown notified counsel for Mr. Robinson that Peel Regional Police was in possession of an occurrence report (“the record”) relating to D, then a youth, concerning an incident dated 23 March 2018. D was never charged with the incident.
[13] This incident occurred contemporaneously with D’s allegations. Accordingly, the applicants made an application for the disclosure of the record under the provisions of s. 119 of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) and the third-party record regime contained in s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46.
[14] At the end of oral submissions, I informed the parties that the record would not be disclosed and that reasons for my decision would follow. These are those reasons.
LEGAL PRINCIPLES
The YCJA Application
[15] Section 2 of the YCJA defines a record as:
any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purpose of this Act or for the investigation of an offence that is or could be prosecuted under this act.
[16] There is no dispute that the occurrence report is a record within the meaning of s. 2 of the YCJA.
[17] Section 118 of the YCJA creates a general prohibition on the access of records of a young person and at the same time creates a legal framework which determines disclosure on the basis of the class of applicant and whether a charge was laid. Sections 114-116 of the YCJA allow access to court, police and government records.
[18] Section 119(1) identifies a class of persons who may apply for access to youth records. Subsection 119(1)(q) includes in that class an accused charged with a criminal offence so long as that person or their counsel swears an affidavit explaining why access is necessary to make full answer and defence. Subsection 119(1) also makes clear that any application must be made within a specified “access period” as defined by subsection 119(2).
[19] That subsection defines the access period for once a charge is laid and the case has been resolved. There is no provision for access in relation to outstanding charges.
[20] Section 119(4) provides for access to police and government records where no charge was laid but extrajudicial measures (not extrajudicial sanctions) were imposed. However, the list of persons specified in subsections (4)(a)-(d) do not include an accused person.
[21] If the access period governing a particular application has expired, the applicant may apply for access under s. 123 of the YCJA. However, the applicant must satisfy a youth justice court judge of the following three conditions: (i) the applicant has a valid and substantial interest in the record or part; (2) it necessary for access to be given in the interest of the proper administration of justice; and (3) disclosure is not prohibited by any other federal or provincial statute. Alternatively, an applicant may obtain access by persuading a judge that disclosure is desirable in the public interest for research or statistical purposes.
[22] There is some jurisprudential conflict on the issue of whether “no charge” records can be disclosed.
[23] In R. v. J.B., 2008 ONCJ 208, Borenstein J. ruled that occurrence reports of incidents where the subject was not charged or not disposed of through extra-judicial measures could be disclosed because they were not subject to the restrictions prescribed in subsections (2) and (4) of the YCJA. However, any application for access had to satisfy the threshold tests set out in s. 123 of the YCJA.
[24] The opposite view was taken by Downes J. in R. v. A.B., [2015] O.J. No. 7113 (C.J.), where he held records relating to incidents where no charge had been laid were not disclosable to an accused irrespective of any imposition of extrajudicial measures. Downes J. reasoned that s. 119(4) explicitly limited the class of persons who had access in “no charge” cases with extrajudicial measures. Since an accused was not within that class they could not apply for access. Moreover, if there were no extrajudicial measures, the YCJA provided no mechanism for disclosure, the result being access was prohibited outright and s. 123 had no application. Downes J. pointed out that applicants seeking youth occurrence reports could bring a third party records application pursuant to s. 278.3 of the Criminal Code.
[25] A similar conclusion was reached by Caponecchia J. in R. v. O.Y., 2020 ONCJ 466, where she held that an accused had no access to occurrences which resulted in no charges being laid as they did not fall within the class of people listed in s. 119(4).
[26] However, in R. v. Greer, 2020 ONCJ 67, Freeman Deputy J. followed the reasoning in J.B. and ruled that the police occurrence reports could be disclosed even though they were silent on the issue of extra judicial measures. In R. v. C.S. [2020] ONCJ 560, at para. 19, DeFillipis J. expressly declined to follow Greer holding it to be wrongly decided. The same view was adopted in R. v. Burgess, 2021 ABPC 80.
[27] For the following reasons, I am also inclined of the view that the decisions in A.B. and O.Y. are to be preferred to that of J.B. and Greer.
[28] First, if Parliament had intended to permit disclosure of “no charge” records with no extrajudicial measures under s. 123, it could easily have inserted such a provision into the YCJA. Further, it makes little sense that an accused cannot access records where extrajudicial measures were imposed under s. 119(4) yet can do so where no extrajudicial measures were imposed under s. 123. One would imagine that those persons who had avoided extrajudicial measures to have equal or even greater privacy rights that those that had not. Finally, if the reasoning in J.B. is correct, an accused could also apply for reports relating to outstanding charges since they, too were not referenced in the restrictions contained in subsections 119(2) and (4) of the YCJA. This is clearly not permissible.
[29] Accordingly, I conclude that s. 123 is not available as a route of access in respect of records where no charge was laid regardless of whether extrajudicial measures were imposed.
[30] If I am wrong in the conclusion, I would still not order disclosure for the reasons set out below.
The Third Party Records Application
[31] Pursuant to the Supreme Court of Canada’s decision in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, the applicants also seek disclosure of the occurrence report under s. 278.3 of the Criminal Code.
[32] The Crown and D’s counsel have agreed that the sought record be produced to this court for review.
[33] Under s. 278.5(1) of the Code, the applicant must show that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that it is necessary in the interests of justice.
[34] In determining whether to order production I must consider the following factors set out in s. 278.5(2):
(a) the extent to which the record is necessary for the accused to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f) society’s interest in encouraging the reporting of sexual offences;
(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
[35] Section 278.3(4) makes clear that the mere assertion of the any of the following is, standing alone, insufficient to establish likely relevance:
(a) (a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant’s sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.
ANALYSIS
[36] The Crown and D’s counsel agreed that this court could review the PRP report to determine whether the record could be disclosed. As a police occurrence report, D would clearly have a reasonable expectation of privacy.
[37] The applicants argue relevance on the following bases:
Disclosure of the record is probative to D’s credibility and reliability
The record could potentially raise a reasonable doubt that the applicants exercised control direction or influence over D who was, at the time, under the age of 18
The interaction with the police at the time of the record would have provided D an opportunity to engage with the police
In D’s police statement she indicated that she had no recollection of many of the events that transpired due to being intoxicated by drugs and alcohol. The applicants argue that D’s level of intoxication would be noted in the record.
[38] Having reviewed the record, I find that there is nothing in its contents that falls within the need to make full answer and defence or any of the bases advanced by the applicants.
[39] There is nothing in the record that would impact D’s credibility on the applicants’ charges, save one aspect I will come to shortly. The record has nothing to do with the applicants’ charges nor does it make any reference to them. Contrary to the applicants’ assertion the record could not have any impact on the issue of whether the applicants “exercised control, direction or influence over the movements of a person under the age of eighteen years”.
[40] The only aspect of the record that might have some relevance in the applicants’ trial arises from D’s interaction with the police. The incident occurred on 23 March 2018, a date within the approximate time frame – March 2018 – of the charges before the court. It would be unfair if the applicants could not cross-examine D on the fact that she had contact with the police around the time of the allegations and did not inform the officers of what she later reported.
[41] However, this does not require disclosure of the record. The Crown undertakes to admit the fact that D had an interaction with the police proximate to the Motel 6 on March 23, 2018.
[42] This admission will allow the applicants to question D on the reasons why the allegations were not mentioned to the police on 23 March 2018 when she had the opportunity to do so.
[43] I have already expressed my view that the YCJA prohibits access to the record as there was no charge laid. If I am wrong, I would still decline to disclose the record for the reasons I have set out: the applicants do not have a valid and substantial interest in the contents of the report and access is not necessary in the proper administration of justice.
[44] For these reasons, the application is dismissed.
S.A.Q. Akhtar J.
Released: 9 August 2021
COURT FILE NO.: CR-20-10000202-0000
DATE: 20210809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAYLO ROBINSON, REBECCA HORTON AND TYLER VICKERS
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.