Court File and Parties

COURT FILE NO.: CR-22-700000 DATE: 20230501 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. R. (A.) , Defendant Applicant

BEFORE: S.F. Dunphy J.

COUNSEL: David J. Spence , for the Crown Respondent Ashley Dresser , for the Defendant Applicant

HEARD at Toronto: April 27-28, 2023

Reasons for Decision

This decision contains information related to a young person. Subject to s.110(1) of the Youth Criminal Justice Act no person shall publish the name of a young person, or any other information that would identify the young person as a young person dealt with under the Act. These reasons have been anonymized and are authorized for publication in legal reporting services providing this banner is retained on the first page thereof.

[1] On April 27 and 28, 2023, I heard a multi-faceted application by the applicant/defendant in these proceedings seeking to exclude certain evidence obtained in the course of executing a search warrant pursuant to s. 8 of the Charter of Rights and Freedoms.

[2] The Applicant sought leave to cross-examine the affiant on the Information to Obtain and challenged the sufficiency of the ITO after correction, amplification and excision. For oral reasons given, I found that no case to cross-examine the affiant had been made out, the reasons stated for seeking leave having largely been dealt with by consent excisions and amplifications to the ITO negotiated with the Crown. The remaining grounds for leave were more in the nature of seeking to underline the evidence whose very absence from the ITO was said to weaken or invalidate the case made rather than to elicit evidence that would invalidate the basis for issuance of a warrant. I also found that, as so amended, the ITO contained sufficient evidence that the issuing Justice, properly instructed as to the law, could have found reasonable grounds existed to believe that evidence of the crime being investigated would be found in the targeted premises and thus could have issued the warrant. The application was dismissed from the bench for the oral reasons delivered.

[3] Among the portions of the ITO that were excised on consent were various portions that summarized occurrence reports by investigating officers of occurrences involving the accused person while he was a youth (he was 19 years of age at the time of the ITO). It was common ground that use of those records ought not to have been made by police and the references to them were excised from the ITO and it was the as-amended ITO upon which my ruling was based. To be clear, I found that the ITO stated the requisite degree of reasonable grounds to believe in the presence of evidence of the crime being investigated without any reference to such prior records of interactions between the accused and police when he was a youth. The inclusion of such references in the ITO was not material to the issuance of the warrant sought and, of course, ought not to have been included in the first place.

[4] After delivery of those oral reasons, counsel for the defence urged upon me that the portions of her factum outlining the breaches of the Youth Criminal Justice Act, R.S.C. 1985, c. Y-1 ought to be considered as a stand-alone application for exclusion of the evidence notwithstanding the agreed-upon excision of such records from the ITO. The position of the applicant was that the breach of the YCJA went beyond the mere reference to such records in the ITO (which the Crown conceded was an error) but included the very existence of the records themselves which, she submitted, ought to have been destroyed entirely within two months of the disposition of the charges against the accused by their withdrawal.

[5] What followed was what I would characterize as something of a Socratic interchange between counsel and the bench lasting in excess of an hour where I indicated that I found the interpretation of the YCJA suggested to be a strained one but that, having already excised the ITO of all offending references and found it sufficient, no further remedy could survive an analysis under either of the three criteria for excluding evidence pursuant to s. 24(2) of the Charter outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. In the course of that discussion I made reference to a decision of Roberts J. whose citation I did not have with me on the bench.

[6] I dismissed this last raised aspect of the application from the bench after hearing from the Crown who urged upon me the conclusion that the records in question were internal police records the consultation of which cannot amount to a “search” within the meaning of s. 8 of the Charter at all events.

[7] At this juncture, I think it would be useful to summarize my reasons for dismissing this last raised aspect of the application and to provide the missing reference to the decision of Roberts J. to which I made reference.

[8] The applicant’s position was expressed succinctly in paragraphs 76-82 of her factum. While written in support of a request for excision of the relevant information from the ITO, she relied upon the same arguments to support a stand-alone s. 8 Charter application premised on the very existence of the records that were referred to. To be clear, the precise position advanced before me – that the records should not have existed at all and that a s. 8 stand-alone breach can be advanced on that ground – was not explicitly advanced in the factum which advocated for the excision of the offending information from the ITO and the conduct of a s. 24(2) Charter analysis in consequence of that excision (applicant’s factum, para. 82).

[9] In summary, her position before me may be summarized as follows: a. Police occurrence reports entered into the Versadex system at Toronto Police Services are nevertheless “records” just as fingerprints are; b. The retention period for “records” where, as here, charges were laid and then withdrawn under the YCJA is two months: s. 119(2)(c) YCJA; c. S. 128(2) of the YCJA provides that a record may be transmitted to the Librarian and Archivist of Canada or destroyed at the end of the retention period – it does not contemplate retention of records without destruction.

[10] In my reasons for dismissing this last aspect of the application, I indicated that I was not persuaded by the argument that every record of every kind referencing an interaction with a minor person must either be destroyed or transmitted to the Librarian under s. 128(2) of the YCJA and no authority for that extreme position had been cited to me. The decision of Then J. in R. v M.O., 2017 ONSC 1213 characterized the use of fingerprint records that the accused had been compelled to provide as a minor amounted to a s. 8 Charter breach that in the circumstances of that case warranted exclusion of the evidence obtained as a result. Then J. did not hold that internal police notes of interactions with a minor are required to be destroyed after the retention period pursuant to s. 128(2) of the YCJA.

[11] The contended-for interpretation of s. 128(2) of the YCJA appeared to me to be a strained one. If the records are required to be destroyed at the end of the retention period, then the provisions of s. 123(1) authorizing the court to grant access to a record after the end of the retention period would be quite pointless. Numerous other provisions of the YCJA authorize the creation and retention by police of such records as occurrence reports and the strictures of the YCJA are generally expressed as applying to their use and not their very existence – even s. 128(2) is expressed only in permissive language. I agree with my colleague Roberts J. in R. v. J.B., 2023 ONSC 1823 that the provisions of the YCJA are complex. Furthermore, such routine records may be created involving multiple parties only some of whom may be minors – the JCJA contains no directions as to how such mixed records are required to be treated.

[12] It is common ground that prior authorization in the form of a court order was required prior to the use in the ITO of the information contained in the police file and that this was not done. The inclusion of such information was improper and its excision was consented to by the Crown. The issue raised by this case is whether the continued existence of a record created by police is itself a breach of the JCJA such that the mere act of consulting it may be characterized as a “search” of a record in which the accused has a reasonable expectation of privacy. It is that interpretation that I found to be strained.

[13] At all events, I found myself in agreement with Roberts J. in J.B. that negligence in including a reference to such a record in the ITO does not warrant a conclusion of good faith but the absence of good faith does not amount to the actual presence of bad faith of the sort that can satisfy the high standard for the exclusion of evidence under s. 24(2) of the Charter notwithstanding an otherwise sufficient, as-excised ITO following the reasoning of R. v. Paryniuk, 2017 ONCA 87 or R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992.

[14] Given the complexity and uncertainty associated with the interpretation of the YCJA contended for by the Applicant, I cannot find a reasonable basis to conclude that bad faith can be attributed to the affiant of the ITO. Police find themselves in something of a dilemma when assembling an ITO often under time pressures. The requirement for full plain and true disclosure can be seen as favouring inclusion of any and all potentially relevant information. A mistake was made here, there is no doubt. Having excised the improper portions of the ITO, the remaining portions of the ITO were sufficiently compelling to justify the issuance of the warrant that was issued and I found no s. 8 breach in fact occurred. Propensity evidence was of only fleeting relevance to the issuance of a warrant in the first place – the occurrence that was erroneously referred to added little to the properly included adult occurrences and the excision of such improper evidence did not impact the overall case for the issuance of a warrant in any material way in the eyes of a properly informed judicial reader.

[15] None of the three Grant criteria favour exclusion of the evidence where, as here, the warrant stands up to scrutiny after the offending portions have been removed and consequent corrections made. I also agreed with the Crown that the mere fact of consulting an internal record that was not a compelled thing such as a fingerprint record in M.O. is not a “search” within the meaning of s. 8.

[16] Accordingly, I confirmed my dismissal of the application notwithstanding the subsistence of the occurrence report records beyond the retention period under the YCJA. The excision of any references to such records from the ITO adequately addressed their unauthorized use. No other relief is warranted.

S.F. Dunphy J. Date: May 1, 2023