I. INTRODUCTION

[1] Jamal Fogah-Pierre brought two pre-trial applications before me as case management judge.

[2] In the first pre-trial application, Mr. Fogah-Pierre asserted that his right to be free from unreasonable search and seizure contrary to s. 8 of the Charter was violated three times, when:

• the RCMP retained fingerprints taken from him when he was a young person after the expiry of the applicable periods for retention under Part 6 of the Youth Criminal Justice Act (“YCJA”);

• senior fingerprint examiner Carrie Weber was able to access the fingerprints that were taken from him as a youth in the RCMP Automated Fingerprint Identification System (“AFIS”), even though the applicable access periods under the YCJA were over; and

• the RCMP disclosed his name, date of birth, and last known address as the person whose fingerprints Carrie Weber had matched to a fingerprint found at a crime scene, even though there was no court order authorizing disclosure, the fingerprints were taken from him as a youth and all retention and access periods under the YCJA were over.

[3] In remedy for these s. 8 breaches, Mr. Fogah-Pierre seeks exclusion of evidence under s. 24(2) of the Charter. In particular, he seeks exclusion of the evidence of the match of the fingerprints taken from him as a youth to the crime scene fingerprint, as well as the evidence of a subsequent match between a fingerprint taken from him as an adult to the same crime scene fingerprint.

[4] In the second pre-trial application, Mr. Fogah-Pierre seeks severance of counts 1-5 from counts 6-8 on the indictment.

[5] For the following reasons, I have concluded that Mr. Fogah-Pierre’s s. 8 rights were violated. The evidence of both fingerprint matches will be excluded under s. 24(2) of the Charter. The Charter application is allowed.

[6] With respect to the severance application, I have concluded that Mr. Fogah-Pierre has not succeeded in establishing that severance of the counts is in the interests of justice. The severance application is dismissed.

[7] I gave my bottom-line decision on these pre-trial applications orally in court on March 7, 2023, with written Reasons for Decision to follow. These are those reasons.

II. THE CHARGES

[8] Mr. Fogah-Pierre faces two sets of charges on an indictment. The first set of charges, counts 1-5, relate to a shooting that took place outside of 1884 Davenport Road in Toronto on December 18, 2017. These charges are:

• Count 1 – possession of a restricted firearm, a handgun, without lawful excuse and without being a holder of a licence or registration certificate, contrary to s. 91(1) of the Criminal Code;

• Count 2 – possession of a restricted firearm, a handgun, while knowingly not being the holder of a licence or registration certificate for it, contrary to s. 92(1) of the Criminal Code;

• Count 3 – possession of a loaded restricted firearm without lawful excuse and without an authorization, licence or registration certificate, contrary to s. 95(1) of the Criminal Code;

• Count 4 – point firearm at another person without lawful excuse, contrary to s. 87(1) of the Criminal Code;

• Count 5 – intentional discharge of a firearm while being reckless as to the life or safety of another person, contrary to s. 244.1(1)(b) of the Criminal Code.

[9] The second set of charges, counts 6-8 on the indictment, relate to possession of a firearm that was found by police in execution of a search warrant at 1884 Davenport Road, unit 724, in Toronto on June 16, 2018. These charges are:

• Count 6 – possession of a restricted firearm, a handgun, without lawful excuse and without being the holder of a licence or registration certificate, contrary to s.91(1) of the Criminal Code;

• Count 7 – possession of a restricted firearm, a handgun, while knowingly not being the holder of a licence or registration certificate for it, contrary to s. 92(1) of the Criminal Code; and

• Count 8 – possession of a loaded restricted firearm without lawful excuse and without authorization, licence or registration certificate, contrary to s. 95(1) of the Criminal Code.

III. BACKGROUND AND FACTS

A. The Agreed Statement of Facts

[10] The following facts are drawn from an agreed statement of facts filed as an exhibit on the applications. They were admitted solely for the purpose of the pre-trial applications.

[11] Mr. Fogah-Pierre’s date of birth is January 26, 1998.

[12] His fingerprints were taken by the Toronto Police Service (“TPS”) when he was charged with attempted murder arising from an incident that took place on November 12, 2014. Mr. Fogah-Pierre was 16 years old at the time, a young person within the meaning of the YCJA. The charges against Mr. Fogah-Pierre were dismissed in the youth justice court on July 6, 2016.

[13] On December 18, 2017 at 12:30am, there was a shooting outside 1884 Davenport Road. Shortly before the shooting, an individual (who the Crown alleges was Mr. Fogah-Pierre) exited the side entrance of 1884 Davenport Road. He was wearing a grey hoodie, jeans, and black shoes. He was chased on Davenport Road by a knife wielding attacker. Soon after the knife attack, the shooter (who the Crown alleges was Mr. Fogah-Pierre) knelt down on the sidewalk of Davenport Road and discharged five rounds of ammunition. At the same time, an individual linked to the knife attacker ran away from the shooter. This was all captured on video by surveillance cameras.

[14] Bullet fragments from the December 18, 2017 shooting were recovered inside the living room of a house on Davenport Road and inside the tire of a car parked on Davenport Road.

[15] Also captured on video surveillance were images from the lobby of 1884 Davenport Road on December 16, 2017 at 10:21pm and December 17, 2017 at 10:20pm. These depict an individual wearing jeans with rolled up pant legs, and shoes that are said to appear similar to shoes that were found by police in June, 2018 when they executed a Controlled Drug and Substances Act (“CDSA”) search warrant at 1884 Davenport Road, unit 724. The individual in the December 2017 surveillance videos is said to have a specific facial shape, skin tone, and hair line.

[16] On June 16, 2018 the above-mentioned CDSA search warrant was executed at 1884 Davenport Road, unit 724. Police found and seized two loaded firearms, narcotics, and cash. One of the firearms, a loaded restricted firearm, was a CZ 45 97b firearm. It was wrapped in two plastic bags. The internal Dollarama bag had a fingerprint on it. As I will describe more shortly, this found fingerprint was compared to, and found to match, the fingerprints taken from the Applicant when he was a young person.

[17] A warrant issued for the Applicant’s arrest in relation to charges stemming from the December 18, 2017 shooting and the June 16, 2019 possession of firearm.

[18] Forensic analysis of the CZ firearm revealed that it was used to discharge five shell casings and the bullets that were recovered from the scene of the December 18, 2017 shooting outside 1884 Davenport Road.

[19] Also located in the June 16, 2018 search warrant execution was a pair of running shoes that are said to resemble those seen in surveillance videos worn by the person who discharged the firearm on December 18, 2017. This resemblance is based on the shoe type, colour, and silver coloured shoelace tag.

[20] On July 22, 2019, the Applicant was charged in relation to an unrelated offence of possession of a firearm. This charge does not form part of the indictment at issue. The Applicant was 21 years old, an adult, at the time of this arrest.

[21] On July 23, 2019, following his arrest for possession of firearm, the Applicant’s fingerprints were taken as part of the ordinary intake procedures for a person charged with a criminal offence.

[22] While Mr. Fogah-Pierre was in custody on the July 2019 charge, the outstanding warrant came to light and was executed on him for charges relating to the December 18, 2017 shooting and the June 16, 2018 firearm possession charges.

[23] On May 15, 2020, Forensic Identification Laboratory (“FIS”) Specialist Cameron Power compared the Applicant’s fingerprints taken from him as an adult on July 23, 2019 with the fingerprint on the Dollarama bag wrapping of the CZ firearm that was discharged on December 18, 2017 and that was found on execution of the search warrant on June 16, 2018. Based on that comparison, the Dollarama fingerprint was again identified as the fingerprint of the Applicant.

B. Evidence of Senior Fingerprint Examiner Carrie Weber

[24] Senior Fingerprint Examiner Carrie Weber testified before me on this Charter application. She explained that she works with AFIS, which is part of the FIS of the TPS. She is a civilian member of the FIS.

[25] On June 25, 2018, Ms. Weber received an original crime scene fingerprint from the Dollarama bag that surrounded the CZ firearm. She was tasked with searching the AFIS database of known individuals’ fingerprints to try to match the print found on the Dollarama bag. She went through the usual steps in querying the TPS AFIS database for a fingerprint that would match the Dollarama fingerprint.

[26] Ms. Weber testified that she did not find a match for the Dollarama print in the TPS AFIS database. She did not specifically remember that she did not find a match in the TPS database, but said that she must not have because if she had, she would not have gone on to search the RCMP AFIS database. And here she did go on to search the RCMP AFIS database.

[27] When Ms. Weber sent the Dollarama fingerprint to the RCMP AFIS database, it sent her back 20 potential match candidates. She did a side-by-side visual comparison between each of the 20 potential match candidates and the Dollarama fingerprint. This is the usual process for matching found prints to known individuals’ prints in the AFIS database.

[28] Ms. Weber found a match. At this point, Ms. Weber did not have the name, date of birth, or last known address for the individual whose fingerprints matched the Dollarama fingerprint. The AFIS system does not provide identifying information for individuals who are potential matches to a found print, beyond providing a fingerprint section (“FPS”) number, a refugee number, or a temporary resident number. In this case, AFIS had provided Ms. Weber with the FPS number for the known individual whose fingerprints she had matched to the Dollarama bag fingerprint.

[29] Ms. Weber then went on to request all ten fingerprints for the individual whose prints she had matched to the Dollarama fingerprint from the RCMP AFIS database. She could not access these. She received a message saying that the record was sealed either under the YCJA or the Criminal Records Act.

[30] Consequently, Ms. Weber sent an email to the RNSC section of the RCMP. She did not know what “RNSC” stands for, but testified that this is the office within the RCMP that she was to email to request disclosure of sealed identifying information or closed file information in the AFIS database.

[31] The next day, June 26, 2018, Ms. Weber received a response via email from the RCMP. The email identified the individual whose fingerprints she had matched to the Dollarama fingerprint as Jamal Fogah-Pierre. His date of birth and his last known address were also provided. Ms. Weber was given access to images of all ten of Mr. Fogah-Pierre’s fingerprints and his two palm prints on the RCMP AFIS database. The RCMP email indicated that this was the only information that could be disclosed according to non-disclosure criteria under the YCJA or the Criminal Records Act.

IV. THE CHARTER APPLICATION

A. The Alleged Breach of Section 8

1. The Applicable Law

[32] The principal issue on this application is whether the retention and use of the fingerprints taken from the Applicant when he was a young person, 23 months after youth criminal charges against him were dismissed, constituted an unreasonable search and seizure contrary to s. 8 of the Charter.

[33] In R. v. Dore (2002), 2002 45006 (ON CA), 166 C.C.C. (3d) 225 (ONCA) at paras. 33-38, the Court of Appeal for Ontario recognized that the retention of fingerprints may engage s.8 of the Charter. The Court cited R. v. Colorusso, 1994 134 (SCC), [1994] 1 S.C.R. 20 at para. 91, as authority for the proposition that the protection afforded by s. 8 against unreasonable seizure does not extend only to the “mere fact of taking”: Dore, at para. 34. Rather, “the “protective mantle” of s. 8 extends during the duration of the holding and retention of the thing seized in order to protect the privacy interest of the person from whom it was seized”: Dore, at paras. 34, 37.

[34] In this case, there is no issue with the original seizure of the Applicant’s fingerprints. The Applicant does not suggest that the seizure of his fingerprints following his youth criminal charge was unlawful. Instead, the question here is whether the ongoing retention and use of the fingerprints seized from the Applicant as a young person were lawful and constitutional 23 months after his youth criminal charges were dismissed.

[35] Even where fingerprints were lawfully and constitutionally seized following a criminal charge, retention of fingerprints as an “ongoing seizure” may not be lawful or constitutional if the original basis for the seizure is gone and there is no replacement by a new constitutionally acceptable safeguard of the privacy of the person from whom they were seized: Dore at para. 37. In order to determine whether the ongoing retention and use of fingerprints were reasonable after dismissal of the original charge which allowed police to take the fingerprints, “the court must undertake a traditional s. 8 analysis, the onus being on the Crown to show on a balance of probabilities that (a) the ongoing retention is authorized by law; (b) the law is reasonable; and (c) the retention in this case was reasonable: R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 at 14 (SCC)”: Dore at para. 38.

2. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? A review of the relevant provisions of the YCJA

[36] Retention of, and access to, fingerprints taken from a young person are governed by Part 6 of the YCJA. This Part, which deals with “Publication, Records and Information,” contains detailed provisions designed to protect the identity of young persons and any records that may have been created as a result of their involvement in the youth criminal justice system: R. v. C.S., 2011 ONCA 252 at para. 41; S.L. v. N.B. (2005), 2005 11391, 195 C.C.C. (3d) 481 (ONCA) at para. 35; R. v. Alston, 2019 ONSC 5491, at para. 19. Part 6 “addresses the manner in which youth court records are to be kept and by whom; the people who can access them and under what circumstances, how long the records are to be kept; and when and by whom they are to be removed and destroyed”: C.S. at para. 41.

[37] Part 6 of the YCJA is lengthy. Not all of it is relevant to this application. I will only address those sections that are relevant, and only replicate here those sections that are necessary to determining the issues before me.

[38] By operation of s. 113 of the YCJA, “The Identification of Criminals Act (“ICA”) applies in respect of young persons.” Its operation is limited to the taking of fingerprints and other measurements from young persons charged with offences to the circumstances in which an adult may be subjected to the taking of those measurements under the ICA.

[39] Sections 114 to 116 of the YCJA describe who may keep records pertaining to young people. Section 114 establishes, in part, that a youth court may keep a record of any case that comes before it under the YCJA. Section 116 deals with records that may be kept by government departments or agencies. Section 115 deals with records that may be kept by police, including the RCMP, as follows:

Police records

115 (1) A record relating to any offence alleged to have been committed by a young person, including the original or a copy of any fingerprints or photographs of the young person, may be kept by any police force responsible for or participating in the investigation of the offence.

Extrajudicial measures

(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons.

Police records

(2) When a young person is charged with having committed an offence in respect of which an adult may be subjected to any measurement, process or operation referred to in the Identification of Criminals Act, the police force responsible for the investigation of the offence may provide a record relating to the offence to the Royal Canadian Mounted Police. If the young person is found guilty of the offence, the police force shall provide the record.

Records held by R.C.M.P.

(3) The Royal Canadian Mounted Police shall keep the records provided under subsection (2) in the central repository that the Commissioner of the Royal Canadian Mounted Police may, from time to time, designate for the purpose of keeping criminal history files or records of offenders or keeping records for the identification of offenders.

[40] The youth records at issue in this pre-trial application are fingerprints taken from Mr. Fogah-Pierre when he was a youth, maintained in the RCMP’s AFIS database. As such, they appear to be s. 115 records. Here, the investigating police force was permitted under s. 115(2) to provide Mr. Fogah-Pierre’s fingerprints to the RCMP. It was not required to do so because he was not found guilty of the offence which led to the taking of his fingerprints. Having received Mr. Fogah-Pierre’s fingerprints from the investigating police force, the RCMP was required to keep them in a central repository designated for that purpose under s. 115(3).

[41] Subsection 118(1) “is central to the statutory scheme controlling access to records set up in the YCJA”: S. L., at para. 43. This subsection sets out that:

No access unless authorized

118 (1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.

[42] Section 118 “announces an unequivocal and unqualified prohibition against access to records kept by the court, police, or Crown except as required or authorized under the Act. This prohibition is made all the more emphatic by s. 138 which makes it an offence to violate s. 118”: S.L. at para. 44.

[43] Sections 119 to 123 govern who may access youth records and the applicable period within which they may access them. Subsection 119(1) of the YCJA sets out who may obtain access to youth records held under ss. 114-116, and how, within the applicable access period set out in s. 119(2). It identifies a broad range of people and entities that must be given access to youth court records maintained under s. 114, and that may be given access to records maintained by the police under s. 115 and government agencies or departments under s. 116. Among these, s. 119(1)(g) provides that access to youth records during the period of access may be provided to:

119 (1) (g) any peace officer for

(i) law enforcement purposes, or

(ii) any purpose related to the administration of the case to which the record relates, during the course of proceedings against the young person or the term of the youth sentence;

[44] Under ss. 119(1)(g)(i), the TPS had authority to access records of the fingerprints taken from Mr. Fogah-Pierre when he was a young person for law enforcement purposes during the period of access.

[45] Subsection 119(2) provides a detailed description of the period of access to youth records:

Period of access

119 (2) The period of access referred to in subsection (1) is

(a) if an extrajudicial sanction is used to deal with the young person, the period ending two years after the young person consents to be subject to the sanction in accordance with paragraph 10(2)(c);

(b) if the young person is acquitted of the offence otherwise than by reason of a verdict of not criminally responsible on account of mental disorder, the period ending two months after the expiry of the time allowed for the taking of an appeal or, if an appeal is taken, the period ending three months after all proceedings in respect of the appeal have been completed;

(c) if the charge against the young person is dismissed for any reason other than acquittal, the charge is withdrawn, or the young person is found guilty of the offence and a reprimand is given, the period ending two months after the dismissal, withdrawal, or finding of guilt;

(d) if the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, at the end of that period;

(d.1) if an order referred to in subsection 14(2) or 20(2) is made against a young person, the period ending six months after the expiry of the order;

(e) if the young person is found guilty of the offence and the youth sentence is an absolute discharge, the period ending one year after the young person is found guilty;

(f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;

(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;

(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;

(i) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an offence punishable on summary conviction committed when he or she was a young person, the latest of

(i) the period calculated in accordance with paragraph (g) or (h), as the case may be, and

(ii) the period ending three years after the youth sentence imposed for that offence has been completed; and

(j) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an indictable offence committed when he or she was a young person, the period ending five years after the sentence imposed for that indictable offence has been completed.

[46] In this case, the charges against Mr. Fogah-Pierre were dismissed. Accordingly, the relevant period of access is set out in ss. 119(2)(c). It ended two months after the date of the dismissal. Here, the charges were dismissed on July 6, 2016. This means that the period of access to Mr. Fogah-Pierre’s youth fingerprints under s. 119(2) ended on September 6, 2016.

[47] Section 120 of the YCJA governs access to RCMP records specifically. Subsections 120(1) and (4) set out who may obtain access to youth records held by the RCMP under s. 115(3), within the applicable access period set out in s. 120(3). These provisions identify a number of people and entities that may be given access to youth court records maintained under s. 115(3) in respect of an offence set out in the schedule to the YCJA, during the access period. Among these, s. 120(1)(e) provides that access to youth records during the period of access may be provided to:

120 (1)(e) the Attorney General or a peace officer, when the young person is or has been charged with another offence set out in the schedule or the same offence more than once, for the purpose of investigating any offence that the young person is suspected of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or as an adult.

[48] Under this provision, the TPS could lawfully have accessed Mr. Fogah-Pierre’s youth fingerprints in the RCMP AFIS database during the access period, if his original youth charge was listed in the schedule and at least one of the new charges was listed in the schedule. Mr. Fogah-Pierre’s original youth charge, attempted murder, is listed in the schedule. However, none of the new charges stemming from the 2017 shooting or the 2018 possession of firearm are listed in the schedule.

[49] Subsection 120(2) of the YCJA establishes that access to some information contained in s. 115(3) records may be given to a person during the access period set out in s 120(3) if a fingerprint identified as that of a young person is found during the investigation of an offence, as follows:

Access for identification purposes

120(2) During the period set out in subsection (3), access to the portion of a record kept under subsection 115(3) that contains the name, date of birth and last known address of the young person to whom the fingerprints belong, may be given to a person for identification purposes if a fingerprint identified as that of the young person is found during the investigation of an offence or during an attempt to identify a deceased person or a person suffering from amnesia.

[50] This provision gives the TPS legal authority to access Mr. Fogah-Pierre’s name, date of birth, and last known address as the person whose fingerprint was found on the Dollarama bag. However, the request for access must be made within the access period established in s. 120(3).

[51] The period of access to youth records maintained by the RCMP under s. 115(3) that is relevant in this case is set out in s. 120(3)(a):

Period of access

120(3) For the purposes of subsections (1) and (2), the period of access to a record kept under subsection 115(3) in respect of an offence is the following:

(a) if the offence is an indictable offence, other than an offence referred to in paragraph (b) [serious violent offence for which the Attorney General has given notice of intention to seek adult sentence], the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later.

[52] This provision “sets additional access periods for youth records kept by the RCMP”: Alston, at para. 26. To calculate the period of access to s. 115(3) records under s. 120(3)(a), reference must be had to the applicable access periods under ss. 119(2)(h) to (j). The duration of the access periods under these subsections depends “on a number of variables, but is primarily tied to the disposition in the youth justice court”: S.L., at para. 46. All of the access periods under s. 119(2)(h) to (j) depend on the young person having been convicted of an offence. The period of access to RCMP records is then calculated by adding the specified period of time on to the end of the youth court sentence for the offence of which the young person was convicted (typically five years where the young person was convicted of an indictable offence and three years where they were convicted of a summary conviction offence). By way of illustration, “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”: Alston, at para. 26.

[53] In this case, Mr. Fogah-Pierre was not convicted of any offence as a youth, and as a result, did not serve any sentence. There is accordingly no sentence onto which to add an additional period onto the ss. 119(2)(h) to (j) access periods under s. 120(3).

[54] Section 123 of the YCJA allows a person to bring an application to a youth justice court judge for access to records kept under ss. 114-116 after the end of the applicable access period set out in subsection 119(2). Section 123 orders have been judicially interpreted to be available only where access to young person’s record is sought while the young person remains a young person: R. v. M.O., 2017 ONSC 1213 at paras. 9-11.

[55] Here, Mr. Fogah-Pierre’s youth fingerprints and associated identifying information were accessed by the TPS when he was no longer a young person. In any event, no youth justice court order for access was sought or obtained.

[56] A peace officer is permitted, under s. 125(1) of the Act, to disclose any information in a record maintained under s. 114 (court records) or s. 115 (police records) that is necessary to disclose in the conduct of the investigation of an offence. However, disclosure under s. 125(1) is limited by s. 125(8) to the period of access under s. 119(2) of the YCJA. Section 125(8) reads as follows:

Time limit

125(8) No information may be disclosed under this section after the end of the applicable period set out in subsection 119(2) (period of access to records).

[57] As noted above, the period of access in this case under s. 119(2)(c) was two months after the dismissal of Mr. Fogah-Pierre’s youth charges. His charges were dismissed in the youth justice court on July 6, 2016. Accordingly, the access period under s. 119 ended on September 6, 2016, and the period in which a peace officer could disclose under s. 125(1) did as well.

[58] Section 128 of the Act deals with “Disposition or Destruction of Records and Prohibition on Use and Disclosure.” Section 128(1) “speaks to the effect of the end of access periods”: M.O. at para. 15. It prohibits further use of youth records once the applicable access period established in s. 119 or s. 120 has ended:

Effect of end of access periods

128 (1) Subject to sections 123 [court ordered access], 124 [access by the young person or their counsel] and 126 [disclosure by the Librarian and Archivist of Canada for research or statistical purposes on court order], after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

[59] Destruction of youth records is governed by sections 128(2) to 128(7):

Disposal of records

128(2) Subject to paragraph 125(7)(c) [dealing with information disclosed to a professional or other person engaged in the supervision or care of young persons], any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for any province, at any time before or after the end of the applicable period set out in section 119.

Disposal of R.C.M.P. records

(3) All records kept under subsection 115(3) shall be destroyed or, if the Librarian and Archivist of Canada requires it, transmitted to the Librarian and Archivist, at the end of the applicable period set out in section 119 or 120.

Purging CPIC

(4) The Commissioner of the Royal Canadian Mounted Police shall remove a record from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police at the end of the applicable period referred to in section 119; however, information relating to a prohibition order made under an Act of Parliament or the legislature of a province shall be removed only at the end of the period for which the order is in force.

Exception

(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act [“CRA”] is in effect.

Definition of destroy

(7) For the purposes of subsections (2) and (3), “destroy”, in respect of a record, means

(a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and

(b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form.

[60] Section 6.2 of the CRA is relevant to interpreting s. 128(5) of the YCJA. It states:

Disclosure to police forces

6.2 Despite sections 6 [limiting disclosure of convictions for which a record suspension has been ordered] and 6.1 [limiting disclosure of discharges under s. 730 of the Criminal Code], the name, date of birth and last known address of a person whose record is suspended under section 4.1 or who has received a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found

(a) at the scene of a crime during an investigation of the crime; or

(b) during an attempt to identify a deceased person or a person suffering from amnesia.

[61] According to s. 128(2), if Mr. Fogah-Pierre’s youth records were not s. 115(3) records, the RCMP had the discretion to destroy them or transmit them to the Librarian and Archivist at any time before or after the end of the applicable access period set out in s. 119. In M.O., at para. 17, Then J. considered whether this provision created a discretion to neither destroy nor to archive records after the access period, but instead to retain them. He held that the better interpretation of s. 128(2) was “as allowing either for destruction or archiving,” but not neither: M.O., at para. 17.

[62] If Mr. Fogah-Pierre’s youth records were s. 115(3) records, s. 128(3) establishes that the RCMP had to destroy or transmit them to the Librarian and Archivist by the RCMP at the end of the applicable access period set out in s. 119 or s. 120. According to the express language of s. 128(3), there is no discretion to retain s. 115(3) records by neither destroying nor transmitting them: Alston, at para. 30.

[63] In addition, if Mr. Fogah-Pierre’s youth records in the RCMP AFIS database were s. 115(3) records such that s. 128(3) applies, the exception to the requirement of destruction of youth records contained in s. 128(5) does not operate. Section 128(5) does not allow the RCMP to retain s. 115(3) records to match crime scene information relating to an offence committed or alleged to have been committed by a young person in the same manner as information that relates to an offence committed by an adult for which a record suspension under the CRA is in effect.

3. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? Positions of the Parties

[64] The position of the Applicant is that the YCJA only authorized retention, access, and use of his fingerprints for two months after his youth criminal charges were dismissed. Accordingly, he submits that the RCMP’s retention of the fingerprints seized from him as a young person in the AFIS database after September 6, 2016 was not authorized by law. He further submits that Ms. Weber’s access to his youth fingerprints in the AFIS database on June 25, 2018 was not authorized by law because those fingerprints should have been destroyed two months after his charges were dismissed. He also submits that the RCMP’s disclosure on June 26, 2018 of his identifying information as the person whose fingerprints Ms. Weber had matched to the Dollarama fingerprint was not authorized by law. Again, this is because, the Applicant says, his youth records should have been destroyed two months after his charges were dismissed. For these reasons, the Applicant argues that the retention and use of his youth fingerprints was unlawful, unreasonable, and violated s. 8 of the Charter.

[65] The Applicant’s position is that the access period applicable to his youth records is set out in s. 119(2)(c) because his charges were dismissed. This means that the access period ended two months after the date of that dismissal, or on September 6, 2016. It also means that the TPS did not have authority under s. 119(1)(g) to access his youth records on June 25 and 26, 2018 because this was well after the period of access.

[66] The Applicant further argues that his records in the RCMP AFIS database were s. 115(3) records. This is because they were records forwarded by the investigating police force to the RCMP under s. 115(2), and they were kept in the central repository of the RCMP designated for the purpose of keeping records for the identification of offenders. However, he argues, the extended access period under s. 120(3) of the Act does not apply here, notwithstanding that the records were retained under s. 115(3). This is because s. 120(3)(a) calculates the extended access period for s. 115(3) records by adding five years onto the end of the applicable access period set out in ss. 119(2)(h) to (j). But none of the access periods set out in ss. 119(2)(h) to (j) apply to him: he was not convicted of an offence and was not sentenced. It is therefore not possible to calculate an extended access period under s. 120(3)(a) – there is no conviction or sentence onto which to add an additional five years of access. Accordingly, the Applicant submits, the two month access period under s. 119(2)(c) remains the correct access period in his case. Ms. Weber’s access to his youth records some 23 months after his charges were dismissed was outside of that two month access period, so it was not authorized by s. 120(3) of the YCJA.

[67] In addition, the Applicant submits, disclosure of his youth records by the RCMP was not authorized by s. 125(1). This is because s. 125(8) operates to limit s. 125(1) disclosure to the applicable access period in s. 119 or s. 120 – which in this case is the two month period of access established in s. 119(2)(c).

[68] The Applicant further submits that under s. 128(3) of the YCJA, the s. 115(3) records in the possession of the RCMP had to be destroyed or transmitted to the Librarian and Archivist at the end of the two month access period. The RCMP did not have authority or discretion to retain his s. 115(3) records beyond that two month period. Nor were they authorized to retain his s. 115(3) records for the purposes of matching crime scene information under the exception to the statutory rules requiring destruction of youth records set out in s. 128(5). This is because the s. 128(5) exception does not apply to s. 115(3) records. Finally, the Applicant submits that under the terms of s. 128(1), his youth records could not be used for any purpose that would identify him as a young person dealt with under the YCJA after the two month access period ended. He argues that the use of his youth court records to identify him was not authorized by law.

[69] The Crown Respondent takes the position that the retention and use of Mr. Fogah-Pierre’s youth records was authorized by law. Crown counsel submits that access and retention periods for youth records are not necessarily co-extensive, and that there are circumstances in which youth records may be retained after the applicable access period. He argues that the RCMP had discretion here to retain the Applicant’s records in the AFIS database, that the TPS had legal authority to access to them for identification purposes, and that the RCMP had legal authority to disclose his name, date of birth, and last known address to the TPS in these circumstances.

[70] The Crown submits that Mr. Fogah-Pierre’s youth records in the RCMP AFIS database were not s. 115(3) records. Crown counsel notes that s. 128(4) of the YCJA specifically creates a special and different regime for the purging of CPIC records by the RCMP. He argues that there would be no need for a different statutory regime for purging RCMP CPIC records if all youth records in the possession of the RCMP were s. 115(3) records. Accordingly, the Crown submits, not all RCMP records fall within the statutory ambit of s. 115(3). He argues that like CPIC, the AFIS database is investigative. Information in AFIS, like information in CPIC, should not be considered to be part of the central repository maintained by the RCMP under s. 115(3). Therefore, in the Crown’s submission, like CPIC records, AFIS records should not be considered s. 115(3) records. If AFIS records are not s. 115(3) records, the RCMP is not required by s. 128(3) to destroy them (or transmit them to the Librarian and Archivist) at the end of the applicable access period. Instead, the AFIS records would be subject to s. 128(2), which would allow for discretion to destroy or transmit the AFIS records, or do neither and retain them. In these circumstances, the Crown submits, the retention of Mr. Fogah-Pierre’s youth records at the discretion of the RCMP was authorized by law.

[71] Moreover, the Crown submits that because Mr. Fogah-Pierre’s records were not s. 115(3) records, and s. 128(2) gives the RCMP discretion to retain them, the exception to the statutory rules governing destruction in s. 128(5) apply. As a result, the RCMP was statutorily authorized to treat his information in the AFIS database in the same way as it would treat information relating to an offence committed by an adult for which there was a record suspension under the CRA. Under the s. 128(5) exception, s. 6.2 of the CRA governs. Under that provision, because Mr. Fogah-Pierre’s fingerprint was found at the scene of a crime during an investigation, there was statutory authority to disclose his name, date of birth, and last known address to the TPS.

[72] The Crown points to the availability of applications to the youth justice court under s. 123 of the YCJA for access to youth records outside of the access period. This demonstrates that youth records may be retained after the applicable access period, or there would be nothing to apply to the youth justice court for. The Crown argues that there must be access to some of the information in the records in order to be able to fashion an application to the youth justice court. In addition, the Crown relies on the fact that s. 123 applications must be on notice to the young person whose records are sought (s. 123(3)). To be able to give notice to the young person, access to the young person’s identifying information must be given even before any order for access to records outside the access period is made. The Crown submits that disclosure of a young person’s name, date of birth, and last known address under s. 128(5) of the YCJA from records that were lawfully retained under s. 128(2), is a limited disclosure that is both authorized by law and reasonable. Accordingly, the Crown submits that the retention and use of Mr. Fogah-Pierre’s youth records did not violate s. 8 of the Charter.

4. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? Analysis

[73] I have come to the conclusion that the retention and use of Mr. Fogah-Pierre’s youth records 23 months after the dismissal of his youth criminal charge was not authorized by law. In coming to this view, I have carefully considered the positions of the parties, the evidence, the wording of the relevant provisions of the YCJA, and the governing principles of statutory interpretation. These principles were helpfully summarized by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[74] The objects of the YCJA are addressed in the declaration of principle set out at s. 3 of the Act, as follows:

Policy for Canada with respect to young persons

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Act to be liberally construed

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[75] Courts interpreting the YCJA have repeatedly held that it demonstrates an intention on the part of Parliament to ensure that the consequences of involvement in the youth criminal justice system advance the objectives of that system: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 37. These objectives, set out in s. 3(1) of the Act, include holding young persons accountable, preventing crime, and rehabilitating and reintegrating young persons. To achieve these ends:

. . . the YCJA states in s. 3 that the criminal justice system for young persons must be separate from that of adults and must “emphasize . . . enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.”

Both the YOA [Young Offenders’ Act] and the YCJA protect young persons from publication of their identities. Both emphasize rehabilitation rather than punishment. And both require the destruction of youth records after a finite time period.

In creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability and reduced maturity of young persons. In keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible. . . . (R. C., at paras. 38, 40, 41).

[76] As noted, in keeping with its objectives, the YCJA has been held to evidence a clear intention to protect the privacy of young persons. In doing so, the Act seeks to avoid the premature labelling of young offenders as outlaws and to thereby facilitate their rehabilitation and their reintegration into the law-abiding community: S.L., at para. 35 citing F.(N.) Re, [2000] 1 S.C.R. 880, 2000 SCC 35 at paras. 14-15. The YCJA accomplishes these objectives in Part 6 by maintaining “tight control over access to records pertaining to young offender proceedings whether those records are made and kept by the court, the Crown, or the police”: S.L., at para. 42.

[77] I have considered the provisions of Part 6 of the YCJA to determine whether the retention and use of Mr. Fogah-Pierre’s youth fingerprints was authorized by law. I have done so by reading these provisions in their entire context, in their ordinary sense, harmoniously within the Act, the object of the Act, and the intention of Parliament.

[78] I conclude that the YCJA only authorized retention, access, and use of Mr. Fogah-Pierre’s youth records for two months after his youth criminal charges were dismissed. At the end of the two month access period, the YCJA required the RCMP to destroy Mr. Fogah-Pierre’s youth records, or to transmit the record to the Librarian and Archivist, if required.

a) Analysis of the Applicable Period of Access under the YCJA

[79] On a reading of the plain language of s. 119(2)(c), the period of access where youth charges are dismissed ends two months after the date of the dismissal. Mr. Fogah-Pierre’s charges were dismissed on July 6, 2016. As a result, the period of access under s. 119 ended two months later, on September 6, 2016. Accordingly, the TPS was not authorized by s. 119(1)(g) to access Mr. Fogah-Pierre’s youth records in June 2018.

[80] I further conclude that the additional access periods for s. 115(3) records held by the RCMP, established under s. 120 of the Act, do not apply in this case. Before moving on to explain why I have come to this conclusion, I must address the question of whether the youth records at issue here are s. 115(3) records. This is because s. 120 only applies to s. 115(3) records.

[81] In my view, Mr. Fogah-Pierre’s youth records stored in the RCMP’s AFIS database are s. 115(3) records. The language of s. 115(3) supports this view. The section establishes that the RCMP shall keep “records for the identification of offenders,” including “any measurement, process or operation referred to in the Identification of Criminals Act” provided to it by an investigating police force under s. 115(2), in a central repository. Mr. Fogah-Pierre’s youth records in the AFIS database fall squarely within this statutory definition of s. 115(3) records. His fingerprints were taken under the authority of the ICA. They were forwarded by the investigating police force to the RCMP under the authority of s. 115(2) of the YCJA and were kept by the RCMP in its AFIS database, which is a central repository maintained for the purpose of identifying offenders. I note that in Alston at paras. 21 and 26, Barnes J. was similarly of the view that “AFIS is maintained by the RCMP pursuant to s. 115(3) of the Act.”

[82] The Crown has argued that the records at issue in this case were not s. 115(3) records because there is a separate regime for the purging of youth entries in CPIC under s. 128(4) of the YCJA. The Crown position is that if youth criminal convictions maintained in the CPIC database are not s. 115(3) records, then fingerprints taken from youth and maintained in the AFIS database aren’t either. With respect, I disagree with the Crown’s position on this point.

[83] Section 128(4) explicitly creates a particular regime for the treatment of youth criminal convictions maintained by the RCMP in its CPIC database. This regime for CPIC entries is different in some respects from the regime for the treatment of other youth records maintained by the RCMP under s. 115(3).[^1] Parliament’s decision to single out one type of RCMP record for particular treatment does not mean that other types of RCMP records will likewise necessarily require particular treatment. The exemption of youth CPIC entries from what is included as s. 115(3) records does not mean by necessary implication that other youth records are also exempted from the purview of s. 115(3). Particularly not where the records at issue are caught squarely within the definition set out in the express language of s. 115(3), as youth records in the AFIS database are. The express exemption of youth CPIC records from the class of s. 115(3) records does not change the clear legislative intent to capture fingerprints and photographs of young person within that class. If Parliament had intended to exclude youth entries in the AFIS database from being s. 115(3) records, it could have done so explicitly. It did not. The existence of an express statutory provision exempting youth CPIC entries from being s. 115(3) records demonstrates that Parliament was well aware of its ability to carve particular types of records out of the ambit of s. 115(3). In my view, that Parliament did not do so for youth AFIS records when considered alongside the plain and obvious language of s. 115(3), leads to the conclusion that youth records within the RCMP AFIS database are s. 115(3) records.

[84] Even though I have found that the records at issue are s. 115(3) records, which would bring them within the ambit of s. 120, I find that the additional period of access for s. 115(3) records set out in s. 120(3) does not apply. This is because the additional period of access for s. 115(3) records relating to indictable offences under s. 120(3)(a) is calculated by adding an additional five years onto the end of the period of access set out in ss. 119(2)(h) to (j). The access periods in those subsections depend on the young person having been found guilty of an offence, and are calculated by adding the period of time specified in s. 120(3) on to the end of the youth court sentence for the offence of which the young person was found guilty. In other words, to calculate the additional access period for s. 115(3) records under s. 120(3), the following steps must occur: (1) the young person must have been found guilty of an indictable or serious violent offence (s. 120(3)(a) and (b)); (2) they must have been sentenced to a youth sentence in respect of that offence (s. 119(2)(h) to (j)); (3) there must have been period of access under s. 119(2)(h) to (j), calculated by adding the specified applicable time onto the end of the youth sentence; and (4) the appropriate additional time must be added onto the s. 119(h) to (j) period of access (five additional years for indictable offences (s. 120(3)(a)), and an additional indefinite period for serious violent offences (s. 120(3)(b))).

[85] Mr. Fogah-Pierre was not found guilty of any offence as a youth. As a result, there was no youth sentence imposed on him. Subsections 119(2)(h) to (j), by their express language, only apply to determine the period of access where the young person was found guilty of an offence. Because Mr. Fogah-Pierre was not found guilty of any offence, ss. 119(2)(h) to (j) do not apply to determine the period of access in his case. Because ss. 119(2)(h) to (j) do not apply, the additional period of access for s. 115(3) records under s. 120(3), which build onto the period of access in ss. 119(2)(h) to (j), likewise do not apply. It simply would not make sense to interpret s. 120(3) as applying to this case where there has been no finding of guilt and no youth sentence such that ss. 119(2)(h) to (j) do not apply to the determination of the period of access: M.O., at para. 12. Accordingly, the only period of access that applies to this case is that set out at s. 119(2)(c), which applies where youth charges were dismissed, a period of two months after the date of the dismissal.

[86] Given that the s. 120(3) extended access period for s. 115(3) records does not apply here, none of the statutory bases for access to Mr. Fogah-Pierre’s youth records under ss. 120(1), (2), or (4) apply either. All of these only authorize access to s. 115(3) records during the period of access set out in s. 120(3), which does not apply. There is no extended access period under s. 120(3) here, and therefore no lawfully authorized access during that access period. Consequently, the TPS’ access to Mr. Fogah-Pierre’s youth records was not authorized by s. 120 of the YCJA.

[87] Nor, in my view, was it authorized under s. 125(1) of the Act. It will be recalled that s. 125(1) permits peace officers to disclose information in a record maintained under s. 114 or s. 115, when required to conduct the investigation of an offence. However, disclosure under s. 125(1) is limited by s. 125(8), to the period of access under s. 119(2) of the Act. In this case, again, the relevant period of access is set out in s. 119(2)(c), and it is two months after the charge was dismissed. This means that s. 125(1) only authorized access to Mr. Fogah-Pierre’s s. 115(3) records until September 6, 2016.

b) Analysis of the Effects of the End of the Access Period

[88] Having determined the duration of the access period for Mr. Fogah-Pierre’s s. 115(3) youth records authorized by law, I turn to consider the legal effect of the end of that period. I find that there are four effects of the end of the access period in this case, all of which are relevant to a determination of whether the retention and use of Mr. Fogah-Pierre’s youth records was authorized by law.

[89] The first effect is that, after the access period ended on September 6, 2016, the Applicant’s s. 115(3) records could not be used for any purpose that would identify him as a young person dealt with under the YCJA (s. 128(1)). There are three statutory exceptions to this apparently total prohibition on use of youth records to identify a young person after the end of the access period, none of which apply in this case. I note that one of the statutory exceptions is for court ordered access to youth records after the period of access, brought under s. 123 of the Act. Although it was open to the TPS or the Crown to seek a s. 123 court order for access to Mr. Fogah-Pierre’s youth records after the period of access, no such order was sought. I find that access to Mr. Fogah-Pierre’s youth records after September 6, 2016, identifying him as a person who had been dealt with under the YCJA, was not authorized by law. Indeed, it was in contravention of s. 128(1) of the Act.

[90] The second effect of the end of the access period was that, pursuant to s. 128(3) of the YCJA, once the access period was over, Mr. Fogah-Pierre’s s. 115(3) records had to be destroyed or, if required by the Librarian and Archivist of Canada, transmitted to them. Because these were s. 115(3) records, destruction or transmission to the Librarian and Archivist if required was mandatory. Under the express and plain language of s. 128(3), the RCMP did not have discretion to decide to neither destroy or transmit these s. 115(3) records. Accordingly, the RCMP’s retention of Mr. Fogah-Pierre’s youth records after September 6, 2016 was not authorized by law. Indeed, it was in contravention of the requirement of destruction (or transmission if required) under s. 128(3) of the Act.

[91] The third effect of the end of the access period builds on the second. After the end of the access period, s. 115(3) records must be destroyed (s. 128(3)). They may not be retained by the RCMP after the access period under the s. 128(5) exception to the requirement of destruction of records. Section 128(5) does not authorize the RCMP to retain s. 115(3) records after the access period. Or to use them to match crime scene information in the same manner as it would use information that relates to an offence committed by an adult for which a record suspension under the CRA is in effect. In other words, because the records at issue are s. 115(3) records, they fall within s. 128(3) and must be destroyed at the end of the access period. The exception to the destruction of these records in s. 128(5) does not apply to s. 128(3) records. As a result, s. 6.2 of the CRA does not operate to permit the RCMP to disclose Mr. Fogah-Pierre’s name, date of birth, and last known address, even though a fingerprint identified as his was found at the scene of a crime during an investigation.

[92] The fourth effect of the end of the access period is related to the third. In my view, the end of the access period and the mandatory destruction of s. 115(3) records that follows has the effect of terminating the operation of the ICA and the CRA in relation to those records. I adopt the holding of Barnes J. in Alston at paras. 29-32, that the ICA and CRA only apply to s. 115(3) records during the access period, and not after it:

The 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.

There 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. . . . Section 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.

The 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.

The 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. Such an interpretation is plain and obvious and in accordance with the objects 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.

5. Breach of Section 8 of the Charter: Conclusions

[93] I have concluded that the period of access to Mr. Fogah-Pierre’s youth court records authorized by law was two months. It ended on September 6, 2016. After that period, the RCMP was required by law to destroy his records or, transmit them to the Librarian and Archivist of Canada if required. There was no lawful authority to retain, access, or disclose the records after the end of the period of access.

[94] The Crown has not succeeded in establishing on a balance of probabilities:

• that the RCMP’s retention after September 6, 2016 of Mr. Fogah-Pierre’s fingerprints and identifying information taken from him as a youth was authorized by law;

• that Ms. Weber’s access, on June 25 and 26, 2018, to Mr. Fogah-Pierre’s fingerprints and identifying information taken from him as a youth, in the RCMP AFIS database, was authorized by law; or

• that the RCMP’s disclosure on June 25 and 26, 2018, of Mr. Fogah-Pierre’s fingerprints and identifying information taken from him as a youth, from the RCMP AFIS database, was authorized by law.

[95] Having concluded that the retention and use of Mr. Fogah-Pierre’s youth records were not authorized by law, I need not proceed to consider whether the law authorizing retention and use was reasonable, or whether the retention and use so authorized were reasonable.

[96] The evidence in this case reveals unlawful retention, access, and disclosure of the fingerprints and identifying information of Mr. Fogah-Pierre, contrary to the provisions of the YCJA. This constitutes an unlawful and unreasonable search and seizure, contrary to s. 8 of the Charter.

B. Section 24(2) of the Charter

1. The Applicable Law

[97] There are two components to the test to be applied in determining whether evidence must be excluded under s. 24(2) of the Charter. The first is a “threshold requirement,” which “asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom”: R. v. Beaver, 2022 SCC 54, at para. 94. If the “obtained in a manner” threshold is met, the court moves on to consider the second component of the test under s. 24(2), “the evaluative component.” This “asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute”: Beaver, at para. 94.

a) The Threshold Requirement: Evidence Obtained in a Manner that Violates the Charter

[98] The threshold for s. 24(2) to be engaged is that there must be a sufficient nexus between the Charter breach and the evidence: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 71. Determining whether such a nexus is present “involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained”: Beaver, at para. 95. This does not require a strict causal relationship between the breach and the evidence at issue: R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at para. 43. The connection may be “temporal, contextual, causal or a combination of the three”: R. v. Wittwer, 2008 SCC 33, at para. 19, as long as the connection is not “too tenuous or remote”: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 56, 72. Courts have adopted a purposive approach to this inquiry: Beaver, at para. 96, citing Mack, at para. 38.

[99] In some cases, evidence will not be “obtained in a manner” because police made a “fresh start” by later compliance with the Charter, thereby severing “any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous”: Beaver, at para. 97. However, subsequent compliance with the Charter will not always “result in a “fresh start.” The inquiry must be sensitive to the facts of each case”: Beaver, at para. 97. Courts must take care in considering whether subsequent Charter compliance constitutes a “fresh start” that resolves “obtained in a manner” inquiries:

In some cases, evidence will remain tainted by a Charter breach despite subsequent Charter compliance. . . . Whether evidence was “obtained in a manner” is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence (Beaver, at para. 99).

b) The Evaluative Component: Would Admission of the Evidence Bring the Administration of Justice into Disrepute?

[100] If the “obtained in a manner” threshold is met, a Court considering whether to exclude evidence under s. 24(2) of the Charter moves on to the consider the “evaluative component.” This requires a determination of whether on balance, in all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute over the long term. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada set out the following three avenues of inquiry for s. 24(2) analysis: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits. The assessment, weighing, and balancing of these three inquiries to determine whether exclusion would bring the administration of justice into disrepute is a long-term, prospective, systemic, and objective exercise: Beaver, at para. 133; Grant, at paras. 67-70.

[101] In considering the first inquiry, the seriousness of the Charter violation, the Court must situate infringing State conduct on a “scale of culpability”: R. v. Paterson, 2017 SCC 15, at para. 43. The purpose of this inquiry is to “not to punish the police,” but to determine whether “the police engaged in misconduct from which the court should dissociate itself”: R. v. Tim, 2022 SCC 12, at para. 82. Technical or inadvertent breaches will be situated at the less serious end of the spectrum (see, for example, R. v. Nicholas, 2017 ONCA 646, at para. 47). Careless or negligent breaches will be more serious: “Wilful blindness, negligence, and ‘ignorance of Charter standards’ can all underpin a finding that a breach is serious”: R. v. Booth, 2019 ONCA 970, at para. 59. Deliberate breaches will be at the most serious end of the spectrum: “An officer who violates a Charter right, while knowing better, commits a flagrant breach”: R. v. Adler, 2020 ONCA 246, at para. 27. The more serious the State’s Charter-violating conduct, the greater the need for the Court to disassociate itself by excluding evidence under s. 24(2): Beaver, at para. 120.

[102] Institutional or systemic failure by police to ensure that Charter rights are respected may aggravate the seriousness of a breach (see for example: R. v. G.T.D., 2018 SCC 7, [2018] 1 S.C.R. 220 at para. 2).

[103] Good faith police conduct can mitigate the seriousness of Charter-infringing conduct: Grant, at para. 75. However, absence of bad faith is not tantamount to “a positive finding of good faith”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692 at para. 147. Indeed, only in exceptional circumstances will “deliberate, negligent or wilfully blind state conduct” permit a finding of good faith: R. v. Dhillon, 2012 BCCA 254, at para. 76.

[104] The second Grant inquiry asks the Court to consider the impact of the breach on the accused’s Charter-protected rights. It involves identifying “the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” (Grant, at para. 76)”: Beaver, at para. 123. The impact of the breach must then be situated on a spectrum:

The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute (Beaver, at para. 123).

[105] When the breach at issue is of the right to be free from unreasonable search and seizure contrary to s. 8, the focus under the second Grant inquiry “is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity”: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 at para. 91.

[106] The fact that evidence would have been discoverable even without a Charter breach can cut both ways in the s. 24(2) analysis. If the impugned evidence was likely to have been discovered even without the breach, then the impact on the accused’s Charter-protected rights may be attenuated: Grant, at para. 122. At the same time, if police could easily have obtained the evidence in a constitutionally-compliant manner but chose not to do so, thereby taking a lax attitude toward Charter rights, this may increase the seriousness of the violation: R. v. Cote, 2011 SCC 46, [2011] 3 S.C.R. 215 at para. 69.

[107] The third Grant inquiry requires the Court to consider society’s interest in having the case adjudicated on the merits. The question for consideration is whether society’s long-term interest in preserving the repute of the administration of justice is better served by admission or exclusion of the evidence. The impact of exclusion or admission on the truth-seeking function of the trial is a key consideration: Beaver, at para. 129.

[108] Factors relevant to this assessment include: the reliability of the impugned evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence at issue: Beaver, at para. 129. The exclusion of reliable evidence may undermine the truth-seeking function of the criminal trial and make the trial unfair in the eyes of the public, thereby bringing the administration of justice into disrepute: Grant, at para. 81. The more important reliable evidence is to the prosecution case, the more likely its exclusion is to bring the administration of justice into disrepute: Grant, at para. 83. The seriousness of the offence is a factor that may cut both ways: “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant, at para. 84.

[109] The final step in the s. 24(2) analysis requires the Court to weigh each of the three avenues of inquiry and balance them to determine whether admission of the evidence would bring the administration of justice into disrepute. This is a qualitative exercise, not capable of mathematical precision: Tim, at para. 98. In Beaver, at para. 134, the Supreme Court of Canada gave the following guidance as to how judges should perform this weighing and balancing:

When undertaking this weighing exercise, "it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry" (R. v. Lafrance, 2022 SCC 33, at para. 90 (emphasis in original)). "[W]hen the two first lines, taken together, make a strong case for exclusion", the third line of inquiry "will seldom tip the scale in favour of admissibility" (Lafrance, at para. 90). The third line of inquiry "becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence" (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125-26 and 130). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused's Charter- protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.

2. Positions of the Parties

[110] The Applicant asks the Court to exclude evidence of both fingerprint matches and associated identifying information: (i) the evidence arising from the June 2018 match from the Dollarama bag to the fingerprints taken from him as a youth; and (ii) evidence arising from the May 2020 match from the Dollarama bag to the fingerprints taken from him as an adult. He takes the position that admission of evidence of both would bring the administration of justice into disrepute.

[111] Mr. Fogah-Pierre submits that the evidence of both fingerprint matches was obtained in a manner that violated the Charter. With respect to the evidence arising from the 2018 fingerprint match by Ms. Weber, there is a direct causal relationship between the breaches and the evidence. With respect to the evidence of the 2020 fingerprint match by Cameron Power, the Applicant submits, there is a causal and contextual relationship between the breaches and the evidence. As a result of the 2018 Charter breaches, a warrant was issued for the Applicant’s arrest in relation to charges stemming from the December 2017 shooting and the June 2018 possession of a firearm. When he was arrested for an unrelated matter in July 2019, that warrant came to light and was executed. In March 2020, the defence advised the Crown that it would be pursuing a s. 8 challenge, seeking to exclude both the evidence of the June 2018 youth fingerprint match (the only fingerprint match in existence at the time), and the evidence that arose from it. The adult fingerprint comparisons by Mr. Power were not done until May of 2020. The Applicant’s position is that the charges at issue here arise from the Charter-violating youth fingerprint match; that the match to the adult fingerprint was undertaken with full knowledge that there were Charter concerns about that youth match, in an after-the-fact effort to sanitize the Charter breach. In this way, the Applicant argues, the original Charter violation led to the creation of the evidence arising from the adult fingerprint match. The evidence arising from the May 2020 fingerprint match was obtained in a manner that violated the Charter.

[112] On the first prong of the Grant test, Mr. Fogah-Pierre submits that the Charter-offending conduct by the State was extremely serious. He argues that the three violations of his right to be free from unreasonable search and seizure completely circumvented the regime established in the YCJA to provide enhanced protection to young people, including of their right to privacy. The RCMP retained Mr. Fogah-Pierre’s youth records some 21 months after it was required to destroy them. Ms. Weber, for the TPS, was able to access his youth fingerprints and identifying information 21 months after the end of the retention and access period, at a time when those records were required to have been destroyed. Although the RCMP initially indicated that access to information identifying the person whose fingerprints Ms. Weber had matched was blocked, it readily disclosed his identifying information and full ten fingerprints when she asked for them again. The RCMP did not verify the date of disposition of Mr. Fogah-Pierre’s youth charges, or the duration of the access period under the YCJA before disclosing his youth records, and did not require Ms. Weber or the TPS to do so. No youth court order allowing access to Mr. Fogah-Pierre’s youth records under s. 123 of the YCJA was sought or granted. There was apparently no system in place within the RCMP to make sure that youth records were not retained or disclosed outside of the finite periods authorized under the Act, and apparently no system in place to trigger applications for s. 123 orders before disclosing youth records outside of the access period. This, the Applicant argued, reveals serious institutional disregard for Charter rights and the privacy of young persons protected under the YCJA. The Applicant submits that the first branch of the Grant test greatly favours exclusion of the evidence.

[113] With respect to the second Grant inquiry, the Applicant submits that the breaches had a serious impact on his Charter-protected interests. He had a reasonable expectation of privacy in his fingerprints and his identifying information, particularly because that information tended to stigmatize him as a criminal. The Applicant argues that these breaches had a significant impact on him because he was fingerprinted as a young person. One of the fundamental objectives of the YCJA is to protect the rights of young people, including their right to privacy. He argues that the impact on his Charter-protected rights is further exacerbated by the fact that he has never been found guilty of any offence. The Applicant submits that he has the same reasonable expectation of privacy in his fingerprints and identifying information as any other innocent young person in society. He submits that the second line of inquiry under Grant greatly favour exclusion of the evidence.

[114] In addressing the third branch of the Grant test, the Applicant notes that the Crown on this application took the position that there was evidence beyond the fingerprint matches that implicates him in the two sets of charges. According to the Crown, this includes video surveillance from 1884 Davenport Road where the December 2017 shooting occurred, and some items found on execution of the June 2018 search warrant at 1884 Davenport Road. If indeed there is evidence beyond the impugned fingerprint matches implicating the Applicant, the exclusion of the impugned evidence would not “gut” the prosecution. If indeed the exclusion of the evidence at issue would not prevent the prosecution from proceeding, society’s interest in adjudication on the merits would not be adversely affected by exclusion. However, the Applicant acknowledges that the fingerprint match is reliable evidence. Its exclusion would tend to hinder the trial’s truth-seeking function, which could make the trial unfair in the eyes of the public, thereby bringing the administration of justice into disrepute. For this reason, the Applicant acknowledges that society’s interest in adjudication on the merits likely militates in favour of admission of the evidence.

[115] However, the Applicant argues that the balancing of all three Grant factors leads to the conclusion that the long-term repute of the administration of justice is best served by the exclusion of the evidence in the circumstances of this case.

[116] Crown counsel submits that evidence of the match to the Applicant’s adult fingerprint was not obtained in a manner that violated the Charter. He takes the position that there was no causal, contextual, or temporal nexus between any s. 8 violations and the evidence that resulted from the comparison of the Applicant’s adult fingerprint to the print on the Dollarama bag. The search warrant for 1884 Davenport Road, which named the Applicant as a target, preceded the finding of the Dollarama fingerprint. That found fingerprint was compared to the fingerprint taken from Mr. Fogah-Pierre as an adult in July 2019. The match between the adult fingerprint and the found Dollarama print was completely independent of the earlier comparison to the youth fingerprint. The earlier fingerprint match did not lead to the second fingerprint comparison or match. Accordingly, there was no causal link between any Charter breach and the evidence of the second fingerprint match. Equally, there was no temporal connection: the adult fingerprint comparison occurred in May of 2020, almost two years after the youth fingerprint comparison which constituted the Charter violation complained of. There was also no contextual link between the breach and the match to the adult fingerprint because this was a whole new comparison based on a new fingerprint. In sum, the Crown argues that there was a fresh start when Mr. Power compared the lawfully obtained adult fingerprint, severing any causal, contextual, or temporal nexus between the Charter breach and the evidence obtained.

[117] However, if I were to find that the evidence of the adult fingerprint match was “obtained in a manner,” such that s. 24(2) was engaged, the Crown submits that the admission of the evidence would bring the administration of justice into disrepute.

[118] On the first Grant inquiry, the Crown position is that the breach was not serious. The Crown submits that Part 6 of the YCJA is confusing and unclear. Against that backdrop, the RCMP and the TPS can be forgiven for improperly retaining, accessing, and disclosing Mr. Fogah-Pierre’s youth records. I understood this argument to be that, in light of the complexity of the youth record retention, access, and disclosure regime, police failure to comply must be characterized as mistaken or inadvertent. It cannot be seen as wilful or negligent. Indeed, the Crown characterized Ms. Weber as having acted in good faith because she did not know that she was accessing youth records when she accessed Mr. Fogah-Pierre’s information in the RCMP AFIS database. Accordingly, the Crown submits that the Charter-infringing conduct was at the less serious end of the spectrum. The Crown says that the first Grant factor militates in favour of admission.

[119] With respect to the second branch of the Grant test, the Crown submits that the impact of any breach on the Applicant’s Charter-protected interests is minimal. The Crown argues that the fingerprint evidence it was proposing to use at trial was in relation to the adult fingerprints collected lawfully in an unintrusive fashion. Crown counsel further submits that the Applicant did not have a high expectation of privacy in his fingerprints, or in the other identifying information disclosed to Ms. Weber. He argues that the TPS could have lawfully retained all of this information under the YCJA (s. 128(2)), and that the Applicant’s name, date of birth, and last known address would have been required to bring an application for court-ordered access under s. 123 of the Act. There can be no high expectation of privacy in information that could lawfully have remained in police possession, and been disclosed to the police or Crown to seek a Court order. Moreover, the Crown says, if the Applicant was so concerned about his privacy, he could have requested the destruction of his fingerprints and youth records after the end of the YCJA access period. By failing to do so, the Applicant failed to assert and safeguard his privacy interests. He must live with the consequences of that failure. The Crown also argues that the fingerprint match was discoverable even without the Charter breaches: that the Applicant’s adult prints could have been compared to the Dollarama print even if no match had been made to the youth print. According to the Crown, the second Grant factor favours admission.

[120] The Crown argues that the third line of inquiry, society’s interest in adjudication on the merits, also favours admission of the evidence. Evidence of the fingerprint matches is reliable, and as such, its exclusion would hamper the truth-seeking function of the trial. In considering the importance of this evidence to the prosecution, the Crown acknowledges that it is not the only evidence implicating the Applicant. However, Crown counsel argues that it was important evidence for the prosecution, and that its exclusion might have a meaningful impact on the trial. Finally, the Crown emphasizes that the charges facing the Applicant are very serious: guns are a dangerous scourge in the city of Toronto. The exclusion of evidence in this case, where the charges involve possession and use of a gun, would have a significant negative impact on the long-term repute of the administration of justice.

3. Analysis

a) The Threshold Requirement: Was the Evidence Obtained in a Manner that Violated the Charter?

[121] The evidence relating to the 2018 match of Mr. Fogah-Pierre’s youth fingerprints was obtained directly from the breaches of his rights under s. 8 of the Charter. The TPS obtained his fingerprints and identifying information because the RCMP unconstitutionally retained them and disclosed them to Ms. Weber. The Charter breaches caused the impugned youth records to be made available to the TPS and the prosecution. I have no difficulty concluding that the youth records were obtained in a manner that breached Mr. Fogah-Pierre’s rights.

[122] I have also come to the conclusion that evidence of the 2020 match of the fingerprints taken from Mr. Fogah-Pierre as an adult was obtained in a manner that violated the Charter. There was a causal and contextual relationship between the breaches and the 2020 evidence. The evidence before me is that as a result of the match to the youth fingerprints, which was directly caused by the Charter breaches, an arrest warrant issued in relation to these charges. When Mr. Fogah-Pierre was arrested on unrelated charges in July of 2019, that warrant was discovered and executed. The defence maintains that it gave notice in March 2020 of its intention to bring this Charter challenge. The Crown does not dispute this point. There was no comparison between the adult fingerprints and the Dollarama fingerprint until May 2020, after the defence had alerted the Crown to the Charter concerns with the original youth fingerprint match.

[123] The Applicant takes the position that without the youth fingerprint match, there would have been no arrest warrant on these charges, and no subsequent adult fingerprint match. The Crown argues that there were reasonable and probable grounds to arrest Mr. Fogah-Pierre for the 2017 shooting and the 2018 possession, independent of the 2018 youth fingerprint match. He pointed to the issuance of the 2018 CDSA search warrant, which named Mr. Fogah-Pierre as a target. This meant that police officers satisfied the issuing justice that there were reasonable grounds to believe that Mr. Fogah-Pierre had committed an offence under the CDSA, and that evidence of it would be found at the target address. Upon execution of the warrant, when police found the firearm, according to the Crown, they would have had reasonable and probable grounds to arrest him in respect of possession of that firearm. Even before Ms. Weber’s fingerprint match. I note that although the date of the issuance of the arrest warrant on the 2017 and 2018 charges was not before me, counsel for the Applicant submitted that the arrest warrant did not issue until after the youth fingerprint match. Counsel for the Crown did not take issue with that submission. However, I consider it likely that police would have had reasonable and probable grounds to arrest Mr. Fogah-Pierre for the possession offence, even without the youth fingerprint match. Because police had enough evidence of Mr. Fogah-Pierre’s connection to 1884 Davenport to secure a search warrant there with him as a target, upon finding a gun there, it seems probable that they would have had grounds to charge him in relation to it.

[124] But this does not end the inquiry into whether evidence of the adult fingerprint match was “obtained in a manner” that violated the Charter. There remains the question of whether the May 2020 match between Mr. Fogah-Pierre’s adult fingerprint and the Dollarama fingerprint was likely to have happened without the match to his youth fingerprint in June 2018.

[125] At the hearing of this pre-trial application, I asked this of the Crown. Crown counsel responded by inviting the Court not to engage in speculation of this nature. Instead, he asked the Court to rely on the match that did occur, to the adult print.

[126] I was left to ponder the following question. If there had been no Charter-infringing match to Mr. Fogah-Pierre’s youth fingerprints in 2017, and if he had been arrested on unrelated charges in 2019 and his adult fingerprints were lawfully taken at that time, would police have been likely to have made a match between the adult fingerprints and the Dollarama fingerprint? The Crown did not call any evidence to suggest that police were likely to have compared the adult fingerprints to the found Dollarama print without the earlier unconstitutionally obtained match. There was no evidence in relation to usual TPS procedures around comparisons of fingerprints taken from newly arrested individuals with unmatched fingerprints found at crime scenes. There was also no evidence before me that established that Mr. Fogah-Pierre’s lawfully taken adult print would have been compared on AFIS to fingerprints found at crime scenes that had not yet been matched in ordinary course, absent the earlier match to the youth print and absent notice of Charter issues with that first match.

[127] The existence of the arrest warrant does not satisfy me that Mr. Fogah-Pierre’s adult prints would necessarily have been compared to the Dollarama print if there had been no earlier comparison to the youth print. The Crown called no evidence to that effect and did not make that submission. It was only after the Crown was put on notice of Charter concerns with the first fingerprint match that the comparison to the adult print was made – 10 months after Mr. Fogah-Pierre’s arrest – notwithstanding the existence of the warrant.

[128] In my view, that Mr. Fogah-Pierre’s adult fingerprints were not compared to the AFIS database until May 2020, some 10 months after his July 2019 arrest, is instructive. It suggests that the TPS did not have a routine practice of comparing the fingerprints of newly arrested individuals to unmatched fingerprints in AFIS in the ordinary course. I can imagine, with the volume of cases handled by the TPS, that if such a practice existed it might take police some time after an arrest to compare fingerprints to unmatched ones in AFIS. But 10 months is a long time in the life of a criminal case in the post-Jordan world. Too long for a routine intake fingerprint comparison to AFIS that is happening as a matter of course.

[129] There is simply no basis in the evidence on which I can conclude that police were likely to have identified Mr. Fogah-Pierre as the source of the Dollarama fingerprint through comparison to his adult prints without the earlier Charter-breaching match to his youth prints. The existence of the arrest warrant does not satisfy me otherwise. I find that the TPS performed the comparison of Mr. Fogah-Pierre’s adult fingerprints because they knew, from the earlier rights-violative comparison, that he was the source of the Dollarama fingerprint.

[130] I do not think it is an accident that the comparison of Mr. Fogah-Pierre’s adult print occurred approximately two months after the Crown was made aware of Charter concerns with the youth fingerprint match. In my view, the comparison of the adult prints was undertaken because of those Charter concerns with a view to ‘correcting’ them and generating what the prosecution hoped would be a clean fingerprint match that could be used at trial. In this way, the original Charter violation had a causal and contextual nexus to the evidence of the adult match. The breach caused the police to perform the comparison to the adult fingerprints and obtain what the prosecution hoped would be Charter-sanitized admissible evidence. The second fingerprint match, whose raison d’etre was the rights-infringing nature of the first match, was “inseparably linked to its tainted past”: Wittwer, at para. 3.

[131] The Crown position is that the comparison to the adult fingerprint constituted a “fresh start,” severing the causal, contextual, and temporal connection between the original breach and the evidence. I do not agree.

[132] In my view, a “fresh start” is a good faith effort by the police, having recognized Charter concerns, to start afresh in a Charter-compliant way. This subsequent police conduct may break the chain of causation between the breach and the evidence. It is one thing for police to reset during the course of an investigation, particularly early on, when the situation is fluid and dynamic. It is quite another for the Crown to try to correct rights violations after-the-fact, once the litigation has commenced and the Crown has been put on notice that the defence intends to litigate a Charter issue. The former, a police reset during the investigation, may afford a whole new chance to respect Charter rights and “drive a wedge” between the breach and the evidence ultimately obtained: R. v. Simon, 2008 ONCA 578 at para. 74. The latter, an effort to salvage the evidence after the litigation has commenced, may amount to closing the stable door after the horse has bolted. Things have ultimately been done in the right way, but too late to prevent the negative consequence one would seek to avoid. The causal, temporal, or contextual relationship between an earlier Charter breach and the evidence ultimately obtained may not be severed by late-stage Charter-compliance of this sort. Particularly not where it was motivated by the prosecution’s awareness of, and desire to cure for trial, potential Charter problems with the earlier evidence.

[133] In the circumstances of this case, the earlier rights-violative fingerprint match is implicated in the subsequent rights-compliant one. The two are inseparably linked. I cannot conclude that the second fingerprint comparison would have occurred without the earlier Charter breaching one. The second fingerprint comparison did not constitute a “fresh start.” Evidence in relation to it was obtained in a manner that violated the Charter.

b) The Evaluative Component: Would the Admission of the Evidence Bring the Administration of Justice into Disrepute?

[134] Having concluded that the “obtained in a manner” threshold was met for both sets of evidence, I turn now to consider whether admission of the evidence would bring the administration of justice into disrepute.

[135] Dealing first with the seriousness of the breach, the RCMP unlawfully failed to destroy Mr. Fogah-Pierre’s youth records after the end of the access period. It further unlawfully disclosed his fingerprints and identifying information to the TPS. In so doing, the RCMP “circumvent[ed] the clear intent of Parliament,” which “constituted a serious violation and cannot be condoned by the court. To do so will undermine public’s [sic] confidence in the law and its processes”: Alston, at para. 36.

[136] It is true that the RCMP had “sealed” Mr. Fogah-Pierre’s youth records in AFIS. Ms. Weber was initially denied access to all ten fingerprints, and to further identifying information of the person whose print she had matched to the Dollarama bag print. She received a message on AFIS saying that the records were sealed either under the YCJA or the CRA. However, the seal on Mr. Fogah-Pierre’s youth records had no practical effect whatsoever in limiting access. All Ms. Weber had to do to gain access to the sealed youth records was to send an email to the RCMP requesting them. As soon as she did so, all of the fingerprints and identifying information were handed over. There was no evidence before me to mitigate the seriousness of the RCMP’s breaches of Mr. Fogah-Pierre’s s. 8 rights. The Crown called no evidence of any policy, process, or practice within the RCMP to ensure that records sealed under the YCJA were not improperly disclosed, and no evidence of any policy, process, or practice within the RCMP to determine when access periods under the YCJA expired. There was also no evidence of the RCMP having a process to determine whether sealed youth records required an application for a youth court order under s. 123 of the YCJA to permit disclosure after expiration of the access period. Indeed, the Crown did not call evidence that the RCMP had any kind of internal process for ensuring that s. 115(3) youth records in the AFIS database were destroyed at the end of the relevant access period, or within a reasonable time thereafter.

[137] Like Then J. in M.O.[^2] at para. 24, I find that the RCMP’s unlawful retention and disclosure here “is not the product primarily of isolated mistakes and the inadvertence of individuals who accessed the fingerprint or the information, but rather this breach of the applicant’s rights under s. 8 of the Charter is aptly described as institutional, or systemic indifference that has resulted from longstanding policies.”

[138] The Crown characterizes the breaches here as mistaken or inadvertent, and understandable given the complexity of the legislative scheme governing youth records in the YCJA. I agree that the provisions overall are complex. However, s. 119(2) provides a detailed, comprehensive, and clear guide to access periods. Section 120(3) also provides a detailed, comprehensive, and clear guide to the additional access periods that may be available for s. 115(3) records. I agree with the finding in M.O. at para. 25 that, “[w]hile the complexity of the provisions of Part 6 of the YCJA must be acknowledged, the provisions regarding access are crystal clear, as is the view of the Supreme Court that access is finite [in R.C., at para. 40, cited earlier in M.O., at para. 19].”

[139] What may have been less clear to the RCMP is whether Mr. Fogah-Pierre’s youth records in the AFIS database were s. 115(3) records to which additional access periods under s. 120(3) applied. However, I do not accept that any such confusion on the part of the RCMP, if it existed, makes the breaches here less serious. This Court had already decided in 2017 in M.O. at para. 12 that the extended access periods available under s. 120(3) did not apply where the young person was not convicted of an indictable offence. A reading of the language of the section leads to the same conclusion. Faced with any uncertainty about whether Mr. Fogah-Pierre’s youth records were still within the lawful access period, it was incumbent on the RCMP to take further steps to ensure that his rights were respected. There should have been some mechanism in place to review the case, determine the access period, or get legal advice about it, and either deny disclosure or seek a s. 123 order/require the TPS to seek a s. 123 order. The RCMP’s inadvertence, negligence, or ignorance of Charter standards does not mitigate the seriousness of the breaches: Booth, at para. 59.

[140] The Crown asks me to find that Ms. Weber acted in good faith, and that this mitigates the seriousness of the Charter breaches. Ms. Weber did not know, the Crown submits, that she was accessing youth records when she queried the AFIS database. I agree that when Ms. Weber entered the Dollarama print into AFIS and it matched to a print whose source was only identified by an FPS number, she could not have known that she was dealing with youth records. However, when she sought information to learn the identity of the source of the matched fingerprints, AFIS told her that the information was sealed under the YCJA or the CRA. At that point, Ms. Weber was put on notice that she was seeking sealed records, and that they might have been sealed under the YCJA. It was incumbent on Ms. Weber, as a civilian member of the TPS, to inquire further. There was no evidence before me that the TPS has any policy or procedure in place to ensure that records sealed under the YCJA are sought in a manner that complies with the law and the Charter. In these circumstances, I cannot find that Ms. Weber’s actions attenuate the seriousness of the breaches.

[141] Even if I were to find that Ms. Weber was acting in good faith, that would not mitigate the seriousness of these Charter violations. The RCMP held these records, had the legal obligation to destroy them at the end of the access period, and not disclose them. Their failure to abide by the statutory regime that bound them, and the Charter rights it protected, was serious. In coming to this conclusion, I find the decision in Alston instructive. On the facts of that case at paras. 14 and 36, Barnes J. found that the Peel Regional Police Service accessed youth records in the RCMP’s AFIS database with no knowledge or awareness that they were youth records or that the access period had expired. He would not have excluded evidence of the match to the youth fingerprints under s. 24(2) on the basis of the inadvertent s. 8 breach by the Peel Police. Nevertheless, Barnes J. found the s. 8 breaches by the RCMP in failing to destroy youth fingerprints after the expiration of the access period and in disclosing them to the Peel Police, to be serious. This finding was grounded in the RCMP’s responsibility for its AFIS database. I adopt the holding at para. 36 of Alston that, “[u]nlawful conduct by one law enforcement agency cannot be exempted from scrutiny by the inadvertent participation of another law enforcement agency in the unlawful act.”

[142] The s. 8 breaches here were serious. This factor militates in favour of exclusion of the evidence.

[143] I turn now to consider the second branch of the Grant test, the impact of the breaches on Mr. Fogah-Pierre’s Charter-protected interests. In Dore at para. 64, the Court of Appeal for Ontario held that there is an ongoing expectation of privacy in fingerprints for a person who was not found guilty:

On the issue of whether a person does retain any expectation of privacy in the informational component of fingerprints, I conclude that there is no basis in the case law or otherwise, to infer that a person who was subjected to fingerprinting upon arrest will not have some reasonable expectation of maintaining or regaining his or her privacy in fingerprint information if the charge is disposed of in his or her favour. There is no reason to differentiate the expectation of privacy that an acquitted person has in such information from the expectation that a person who has never been charged with an indictable offence would have, because it is information about and from one's body not normally available without one's consent. Added to that in the context of retention is the nature of the storage by the police which tends to stigmatize as a criminal the person whose fingerprints are retained. Although it may be that because of the nature of that information, the expectation of privacy is minimal when compared, for example, to information which can disclose the genetic make-up of the person and not merely the person's identity, I conclude that a person can have some privacy interest in the retained fingerprints.

[144] Dore was decided in the adult context. There is a heightened expectation of privacy for young persons built into the YCJA, even vis-à-vis the police. It survives (or revives) after the end of the access period: C.S., at paras. 97 and 121. This was recognized by the Court of Appeal for Ontario in C.S., at para. 121:

young persons who have been charged and/or found guilty of a serious criminal offence retain an expectation of privacy in their identity vis-à-vis the public at large that adults do not. In my view, however, they are in the same position as adults when it comes to retaining an expectation of privacy in their identity vis-à-vis law enforcement authorities, subject of course to the special provisions that call for the eventual removal and destruction of their records under Part 6 of the YCJA.

[145] In other words, after the expiration of the access period, young persons have a heightened expectation of privacy in their youth records (including fingerprints) that adults do not, even as against police engaged in a legitimate investigation. There is a “premium placed on the privacy interests of all young persons involved in young offender proceedings”: S.L. at para. 36. I conclude that young persons have a high expectation of privacy in their youth records (including fingerprints) in the hands of the police after the expiration of the access period. Especially when they have not been found guilty of the offence which led to the creation of those youth records.

[146] I am not persuaded that the impact of these s. 8 breaches is attenuated by Mr. Fogah-Pierre’s failure to ask the police to destroy his fingerprints. I do not accept that Mr. Fogah-Pierre thereby failed to assert and safeguard his privacy interests, and has to live with the privacy-breaching consequences. In Dore at para. 71, the Court of Appeal held that an affected person is in the best position to know if they have regained an expectation of privacy in their fingerprints because they were not found guilty of the charge. Accordingly, the Court held that “a reasonable balance is struck by holding that the right to be left alone in those circumstances arises if and when the person asserts his or her privacy interest by asking for the fingerprints to be returned or destroyed. It is at that point that further retention of the fingerprints would become… unconstitutional . . .”: Dore, at para. 71.

[147] In my view, this holding in Dore only applies to fingerprints taken from adults. It does not apply to fingerprints taken from young people. There is no statutory regime that automatically, by operation of law, limits the period of time during which adult fingerprints may be accessed. There is also no heightened expectation of privacy in fingerprints taken from adults. Indeed, there is a more minimal expectation of privacy in adult prints: Dore, at paras. 64 and 71. By contrast, there is a heightened expectation of privacy in youth records. The YCJA creates a statutory regime that automatically, by operation of law, limits the period of time during which youth fingerprints may be accessed. The Act makes clear that there shall be no access to any records or any information kept under ss. 114-116, except as authorized or required under it (s. 118(1) and s. 138).

[148] Accordingly, Mr. Fogah-Pierre was entitled to assume that his youth records would be destroyed in the ordinary course, or at the very least, that no one would be able to access them after the access period ended. He was not required to assert his right to privacy in his youth records in order to give rise to an obligation on the part of law enforcement authorities to respect it.

[149] I do not accept the Crown submission that the s. 8 breaches made less of an impact on Mr. Fogah-Pierre’s rights because the TPS could have retained his youth records under s. 128(2) of the YCJA. I agree with the holding in M.O. at para. 17, that s. 128(2) should be understood as creating a discretion in the investigating police force either to destroy or to archive youth records, but not a discretion to do neither. A discretion in the investigating police force to retain youth records after the access period ends would not be consistent with the rehabilitative and reintegrative objectives of the YCJA, nor with its privacy-protective aims and scheme. Even if I am wrong in my reading of s. 128(2), and the TPS would have had lawful authority to retain Mr. Fogah-Pierre’s youth records, I would still not find that this resulted in an absent or diminished expectation of privacy in them. Access to, and disclosure of, his youth records was well outside the access period. Mr. Fogah-Pierre would reasonably have expected that the records would not be accessed or disclosed at that time, even if retention by the TPS was lawful. Or at least not without a s. 123 youth court order, on notice to him.

[150] I also do not accept that the availability of an application for a s. 123 order and the disclosure of Mr. Fogah-Pierre’s identifying information that would have been necessary to pursue it diminishes his expectation of privacy. If Mr. Fogah-Pierre’s youth records had been destroyed as required two months after his charges were dismissed, no application under s. 123 would have been possible. There would have been no youth record in the AFIS database, and therefore no match made between the Dollarama print and Mr. Fogah-Pierre’s youth print. There would have been nothing to seek a court order for access to under s. 123.

[151] Moreover, an application for a s. 123 order may not have been available here, even if one had been sought. On a reading of the language of s. 123(2) of the Act, applications for s. 123 orders may only be available where access to a young person’s record is sought while they are still a young person: M.O., at paras. 9-11. Mr. Fogah-Pierre was no longer a young person in June 2018 when his youth records were accessed and disclosed.

[152] Even allowing for the possibility that the youth records were lawfully retained and a s. 123 application could properly have been brought, the disclosure of Mr. Fogah-Pierre’s identifying information could only have been made for the purposes of bringing that application. This is not equivalent to disclosure of his youth records to law enforcement for the purposes of an ongoing investigation and ultimately for use in a prosecution. A s. 123 application authorizes limited disclosure, for a limited and specific statutorily authorized purpose. Had that been pursued, the youth court would have held a hearing to determine whether the statutory prerequisites for access to the Applicant’s youth records outside of the s. 119(2) access period had been met. The very purpose of an application for a s. 123 order is to protect the privacy of young people to the extent possible within the constraints of the public interest in law enforcement. A youth court judge considering such an application determines whether the young person’s expectation of privacy in their youth records is overborne by sufficiently pressing public interest in access. In my view, the availability of s. 123 applications for access outside the access period underscores that young people have a high expectation of privacy in their youth records. That Mr. Fogah-Pierre’s identifying information might have been disclosed to facilitate the bringing of a s. 123 application does not signal a diminished expectation of privacy in that information.

[153] The Crown has asked me to find that the fingerprint match in this case was discoverable even without the Charter breaches. This, the Crown argues, is because Mr. Fogah-Pierre’s adult fingerprints could have been compared to the Dollarama print even if no match had been made earlier to the youth print. I have already come to the conclusion that there was no basis in the evidence on which I could conclude that the police were likely to have identified Mr. Fogah-Pierre as the source of the Dollarama fingerprint through comparison to his adult prints without the earlier Charter-breaching match to his youth prints. While the fingerprint match could have been discoverable in a Charter-compliant way, on the evidence before me it was not likely: Grant, at para. 122. The fingerprint match was not discoverable. This does not attenuate the impact of the s. 8 breaches on Mr. Fogah-Pierre’s Charter-protected interests.

[154] The s. 8 breaches here had a significant impact on Mr. Fogah-Pierre’s Charter interests. This factor militates in favour of exclusion of the evidence.

[155] Considering the third branch of the Grant test, I find that society has a high interest in a trial of these serious gun-related charges on the merits. The fingerprint matches are “very cogent and reliable evidence”: M.O., at para. 26. However, according to the Crown, this is not the only evidence implicating the Applicant upon which the prosecution intends to rely at trial. That having been said, the Crown explains that the fingerprint match is important evidence for the prosecution. Its exclusion might well have a significant impact on the trial. I conclude that the exclusion of the evidence would not completely prevent the trial from proceeding on the merits, but could meaningfully hamper its important truth-seeking function. The Applicant acknowledges as much.

[156] The charges are very serious. They involve not only illegal possession of a gun, but dangerous use of it outside a residential building. The acts leading to these charges could have resulted in serious injury or death, not to mention psychological harm and damage to property. It goes without saying that guns are extraordinarily dangerous. Courts have recognized time and time again that guns are a very real and concerning problem in the City of Toronto. The seriousness of the charges before the Court underscore that the public has a heightened interest in having them tried on the merits. At the same time, I must adopt a long-term, systemic, and prospective approach to determining the impact of exclusion of the evidence, particularly here where the penal stakes for the Applicant are high.

[157] Overall, I find that society has an interest in adjudication of this case on the merits. I agree with both parties that this factor militates in favour of admission of the evidence.

[158] Balancing all three Grant lines of inquiry, I have determined that the long term repute of the administration of justice requires that the evidence be excluded in this case. The first two Grant factors strongly favour exclusion. I am particularly influenced by the RCMP’s “serious systemic institutional indifference to the provisions of the YCJA, as well as the view of the Supreme Court in R.C., supra, that the identities of young persons be protected and that access to information regarding fingerprints and records revealing a young person’s identity be finite ”: M.O., at para. 29. The first two lines of inquiry, taken together, “make a strong case for exclusion”: Lafrance, at para. 90. While the third inquiry favours admission, it does not do so so strongly that the first two inquiries are overborne. This is not one of those cases where first two inquiries are “overwhelmed by a compelling public interest in admitting the evidence” [emphasis added]: Beaver, at para. 134.

[159] Admission of the evidence of both fingerprint matches would bring the administration of justice into disrepute. Evidence of both fingerprint matches will be excluded under s. 24(2) of the Charter.

V. THE SEVERANCE APPLICATION

[160] The second pre-trial application brought by Mr. Fogah-Pierre is for severance of counts under s. 591(3) of the Criminal Code. He seeks to have counts 1-5 severed from counts 6-8 on the indictment. The charges in the first group relate to the discharge of a firearm outside 1884 Davenport Road on December 18, 2017. The charges in the second group relate to possession of a firearm that was found in an apartment at the same address when a search warrant was executed there on June 16, 2018.

[161] The Applicant takes the position that severance of counts is in the interests of justice. He submits that a joint trial would give rise to significant risk of prohibited propensity reasoning across counts, and to cross-pollination of credibility assessments. He argues that the legal and factual nexus between the sets of counts is tenuous, such that there are few efficiency gains to be made for the administration of justice in having a joint trial and few redundancies or inefficiencies that would result from having two severed trials. The Applicant states that he intends to testify at trial in relation to the 2017 shooting charges, but not in relation to the 2018 possession charges. He maintains that his right to control his defence, and his right to decide whether or not to testify with respect to each set of charges militates in favour of severance.

[162] The Crown opposes the severance application. It takes the position that the Applicant has not discharged his burden of establishing on a balance of probabilities that the interests of justice require severance, or that his interest in a fair trial would be protected by severance and that it outweighs the interest of society in avoiding a multiplicity of proceedings. The Crown argues that there is a strong legal and factual nexus between the sets of counts. The legal nexus is established by the overlapping legal issues of knowledge and control, and identity. The factual nexus is evidenced by the number of items of admissible evidence the prosecution would seek to call in relation to both sets of charges. The Crown posits that the strong nexus between the counts would result in two repetitive trials where much of the same evidence would be called if counts were severed. This would result in needless inefficiency and wasted justice system resources. Crown counsel submits that there is limited risk of prejudice to the Applicant from a joint trial. And that the Applicant has not satisfied his burden of establishing that the circumstances objectively establish a rationale for testifying in relation to the 2017 shooting charges, but not in relation to the 2018 possession charges.

[163] At the hearing of this application, both parties made little in the way of oral submissions in relation to severance. They relied instead on their written application materials. I have carefully reviewed and considered all written materials of both parties filed on this severance application, including facta and voluminous case law.

[164] I have come to the conclusion that the Applicant has not met his burden of establishing that severance of counts 1-5 from counts 6-8 is in the interests of justice, or that it is required to ensure that he has a fair trial, while outweighing society’s interest in avoiding a multiplicity of proceedings.

[165] The test to be applied by the Court in considering a severance application was helpfully summarized by the Supreme Court of Canada in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146 at paras. 16-18, as follows:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

Courts have given shape to the broad criteria established in s. 591(3) and have identified factors that can be weighed when deciding whether to sever or not. The weighing exercise ensures that a reasonable balance is struck between the risk of prejudice to the accused and the public interest in a single trial. It is important to recall that the interests of justice often call for a joint trial. Litchfield [R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333], where the Crown was prevented from arguing the case properly because of an unjudicial severance order, is but one such example. Severance can impair not only efficiency but the truth-seeking function of the trial.

The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use include: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not another; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons: R. v. E. (L.) (1994), 1994 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 1996 5992 (QC CA), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419; R. v. Cuthbert (1996), 1996 8341 (BC CA), 106 C.C.C. (3d) 28 (B.C.C.A.), at para. 9, aff'd 1997 397 (SCC), [1997] 1 S.C.R. 8 (sub nom. R. v. C. (D.A.)).

[166] No single factor will be determinative of whether severance should be granted. All factors are to be considered together, cumulatively, and weighed against the truth-seeking and administration of justice benefits of a joint trial: Last, at paras. 44-47.

[167] The onus is on the Applicant to demonstrate, on a balance of probabilities, that the interests of justice require severance, or that his interest in a fair trial requires severance and outweighs the interest of society in avoiding a multiplicity of proceedings: R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (ONCA) at para. 119.

1. Factual and Legal Nexus

[168] I agree with the Crown that there is a factual nexus between the two sets of counts. While the shooting and the police finding of the gun occurred six months apart, both occurred at the same location: 1884 Davenport Road. The nexus in time is weak, but the nexus in place is strong.

[169] Much of the evidence on which the Crown would seek to rely would be the same or overlapping for both incidents. The surveillance videos and stills from 1884 Davenport on and around the day of the shooting might well be admissible in relation to both sets of charges: as potential evidence of Applicant’s identity as the person who discharged the firearm, and as potential evidence of his identity as someone who had access to and presence in the building where the gun was found.

[170] Evidence of items found during the execution of the search warrant, including what are said to be distinctive shoes and other items of clothing, might also be relevant to both sets of counts. Viewed alongside the surveillance video and stills, in which the shooter is said to be wearing similar distinctive shoes and clothing, these items might be circumstantial evidence that the same person discharged the firearm and later possessed it. They might assist in establishing that the shooter lived in, or at least had a connection to, the apartment where the gun was found. They might also be relevant to establishing the narrative of how the gun came to be in the apartment where it was found.

[171] Evidence relating to the recovery of shell casings and bullets from the scene of the shooting, and evidence relating to forensic analysis of those casings and bullets and of the gun located during the search, may also be relevant to both sets of charges. Forensic analysis revealed that the seized gun was used to discharge the shells and bullets that were recovered from the scene of the shooting. If the Applicant’s identity as the shooter is proven by the surveillance video and stills, forensic evidence that the gun used in the shooting was the same gun found in the search may be relevant to his possession of that same gun in the apartment.

[172] In finding that much of the same evidence may be relevant to both sets of charges, I am not deciding the issue of cross-count similar fact evidence. I am not holding that evidence admissible only in relation to one set of charges will be admissible on the other. On this distinction, see R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 52. Rather, I am recognizing that some of the same evidence may well be admissible in relation both sets of charges. The Crown did not bring a similar fact evidence application before me, and does not oppose this severance application on the basis of the likelihood of success of a cross-count similar fact evidence application at trial. Instead, the Crown’s position on this application is that there is meaningful overlap between the evidence it would tender in relation to both sets of charges. As a result, severance would result in two repetitive trials, which would take twice the time, and in which some witnesses and evidence would have to be called twice. This would result in inefficiency and wasted justice system resources, which is not in the interests of justice. I agree with the Crown on this point.

[173] Notwithstanding the factual nexus between the two sets of charges, I do not find a strong legal nexus. The determination of whether there is a legal nexus between counts involves considering:

whether there would be a substantively an [sic] overlapping transaction or transactions . . . or whether there would be essential elements in common as between Counts – so as to raise the risk of inconsistency of verdict if severance occurred – or whether there is a commonality of the matters such as to give rise to potential for a res judicata confusion (R. v. Ticknovich, 2003 ABQB 597, [2003] A.J. No. 905 (ABQB) at para. 70.)

Further, “the scope of the legal nexus can be informed by considering the rule in Kienapple v. R., 1974 14 (SCC), [1975] 1 SCR 729 and the principles of issue estoppel”: R. v. Pajackowski, 2021 ONSC 7426, at para. 8.

[174] The Crown submits that there is a strong legal nexus between the two sets of charges because both require the Crown to prove possession (i.e. knowledge and control) of the gun, and the identity of the Applicant as the shooter and person in possession.

[175] Both possession and identity are essential elements that the Crown will have to prove beyond a reasonable doubt to secure conviction on each set of charges. However, this on its own does not establish a legal nexus. Two completely factually unrelated counts, relating to two totally separate incidents in an indictment, may charge the same offence with all the same essential elements at law, but have no legal nexus whatever between them (see, for example, R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465) . The question is not whether both sets of charges require the Crown to prove the same essential elements. Rather, it is whether proof of the essential elements in relation to one set of charges would have a meaningful legal relationship to, or impact on, proof of the essential elements in relation to the other set of charges. In other words, there will be a legal nexus between counts where proof of one would necessarily mean proof of the other[^3] such that severance of counts could give rise to a risk of inconsistent verdicts, issue estoppel, or res judicata. Or where conviction for both sets of counts would give rise to a Kienapple problem such that severance of counts could give rise to a risk of improper multiple convictions.

[176] That kind of legal nexus does not exist here. There is some relationship between the two sets of charges: there is evidence that the same gun was involved in both (forensic analysis of the gun, casings and bullets), and there is evidence (the surveillance video, the distinctive shoes and clothing) from which a trier of fact could infer that the shooter had access to the building and the apartment where the gun was found. Given the factual nexus here, proof of identity and possession and control of the gun on each set of counts may assist the Crown in proving identity and possession and control on the other (not through cross-count similar fact reasoning, but through the factual overlap and connections between the counts and the evidence on each). But that is not necessarily so. The two sets of charges are separated by six months. There was no evidence before me in relation to what happened to the gun in that time, how it went from the shooting to the apartment, or whether there is other admissible evidence linking the Applicant to the apartment in which it was found or to the gun itself after the shooting. I assume that the Crown does not have such evidence. In these circumstances, the Crown may be able to prove the essential elements of identity and possession and control in relation to one set of charges, but not the other. The two sets of charges are related but not so much so that legally they must necessarily stand or fall together, or that the outcome of one will necessarily meaningfully impact on the outcome of the other. There is no risk of inconsistent verdicts, issue estoppel, res judicata, or improperly multiplicitous convictions.

[177] My finding that there is no strong legal nexus between counts does not mean that the severance application must be granted. The Applicant bears the burden of establishing that the counts should be severed. Accordingly, “there is no onus on the Crown to prove a nexus, let alone a strong nexus, between the counts”: Tiknovich, at para. 67. I have found a factual nexus here. This is but one factor for consideration in deciding whether to sever counts. In my view, it is a factor that pulls in the direction of a single trial on all counts, even in the absence of a strong legal nexus. It would not be in the interests of justice to sever counts and require the system to accommodate two repetitive trials, with all of the costs, inefficiencies, delay, and inconvenience to witnesses that would result.

2. Prejudice

[178] There is always some risk of prejudice when multiple counts are tried together. In this case that risk is not so great as to require severance when prejudice is considered as one factor, alongside all of the relevant considerations cumulatively, and balanced against the benefits to be gained from a joint trial: Last, at paras. 45-47.

[179] Prejudice “does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly”: R. v. B.(L.), 1997 3187 (ON CA), 35 O.R. (3d) 35 (ONCA) at para. 22. Prejudice in the severance context refers to (i) “the risk that the evidence on one count might be used improperly by the trier of fact on another”: R. v. Rose, 1997 2231, [1997] O.J. No. 1947 (ONCA), at para. 18; and (ii) the risk that the trier will engage in impermissible propensity reasoning across counts.

[180] I do not accept the Applicant’s submission that a joint trial would result in overwhelming prejudice. His position seems to be that since both sets of charges relate to a gun (which the evidence seems to establish was the same gun), there is a high risk of prohibited propensity reasoning across counts, and a related risk of the trier assuming guilt for both counts even if guilt for only one is properly proven beyond a reasonable doubt. He also argues that there is a significant risk of cross-pollination of credibility assessments across counts: if the trier finds the Applicant not credible in his testimony in relation to one incident, they might presume that he is not credible in relation to the other.

[181] As noted, risk of prejudice of this nature is always present when multiple counts are tried together. However, the Applicant has not satisfied me that there is anything unique in this case that would distinguish it from the general run of multiple count indictment cases where the risk of prejudice can be mitigated through appropriate limiting instructions. The risk of prejudice here is not so extreme as to make it irremediable or overwhelming.

[182] The Supreme Court has warned that while proper jury instructions can overcome potential prejudice, they should only be considered as weighing against severance where “there are sufficient countervailing factors providing a rationale for a joint trial”: Last, at para. 45. The Court noted in Last, at para. 46:

Indeed, if a proper jury instruction were all that was needed to deal with potential prejudice to the accused, then prejudice would in a sense cease to be relevant factor in the analysis. While a limiting instruction can limit the risk of inappropriate cross-pollination or propensity reasoning, courts should not resort to a limiting instruction unless there is a valid reason to do so. . . . the limiting instruction is but one factor in the balancing exercise [emphasis in the original].

[183] This holding amounts to a reminder that defendants should not be exposed to prejudice in a joint trial if there is limited or no benefit to the administration of justice to be gained thereby. Where there is a risk of meaningful prejudice, severance should not be denied simply because it may be mitigated by limiting instructions. A defendant should only be forced to face that risk when all factors relevant to severance including the interests of justice are weighed and balanced, and potential prejudice is outweighed by the benefits of a joint trial.

[184] Here I am not satisfied that there is a risk of significant prejudice. It is true that jurors may be angered or sensationalized by hearing evidence that links the Applicant to the gun, and hearing evidence of a shooting in a residential area. If they find him guilty of one of the sets of gun charges, they may want to further punish him by convicting him of the other set as well. Prejudice of this kind is a possibility whenever firearms charges are tried on multiple count indictments. Moreover, the evidence of which I have been made aware is not complex. The allegations are not complex. A jury would be able to consider the evidence relevant to each count and apply the law properly when instructed to do so. There is some abiding risk of prejudice here, which can be limited by a proper instruction. When the risk of prejudice is considered with all relevant factors, the benefits of a single trial to the administration of justice and the truth-seeking function of the trial process prevail. In my view, the efficiency, cost, and delay saving benefits of a joint trial mean that there is a valid reason to proceed with a joint trial and resort to limiting instructions.

3. The Applicant’s Intention to Testify

[185] The Applicant asserted in his written argument that, as at the time of filing, he intended to testify at trial regarding the December 18, 2017 shooting charges, but not regarding the June 16, 2018 possession charges. He did not provide a basis for this stated intention in his written argument. In oral argument, defence counsel briefly explained that the Applicant may well not want to testify on the possession charges because there is little evidence in relation to them. In effect, the Applicant’s submission was that a joint trial would not be in the interests of justice because it would force him to have to testify in relation to both sets of charges, or neither. He wanted to be able to control his defence by choosing to testify in relation to the shooting charges but not in relation to the possession charges. Although not explicitly argued by the Applicant, I understood the Applicant’s submission to be that he had both a subjective intention not to testify on the possession charges, and an objective rationale for that intention. Both are required if testimonial intention is to be a factor militating in favour of severance: Last, at para. 26.

[186] The objective substance to the Applicant’s testimonial intention, as I understood it, was his view that the prosecution case on the possession charges was weak. The Applicant did not expect that he would need to testify to answer such a weak Crown case. By contrast, the Applicant expected that he would strategically need to answer the Crown’s case in relation to the shooting charges.

[187] The Crown resisted the Applicant’s argument for severance grounded in his testimonial preference. It did so on the basis that the Applicant had not provided sufficient information about the nature of his defence to convey that, objectively, there was real substance to his stated testimonial intention.

[188] I do not agree with the Crown’s position. The Applicant’s submissions as to the rationale for his stated testimonial intention were indeed thin. However, in my view, he did advert to an objectively discernible rationale underpinning a desire to testify on one set of charges and not the other. It is trite law that a defendant is presumed innocent and has no obligation to testify in answer to any criminal charge, the burden of proof always resting with the Crown. As a matter of strategy and practical reality however, a defendant may feel a need to testify to assert their innocence. Particularly where there is some strength to the prosecution case. Here the Applicant seems to be saying that the availability of surveillance videos and stills on the issue of identity on the shooting charges may strategically require him to testify. But what he says is the lack of evidence tying him to the possession charges does not. This is enough of an objective rationale to ground the Applicant’s stated testimonial intention for the purposes of considering that issue in relation to severance.

[189] That having been said, I do not accept that the Applicant’s testimonial intention on its own warrants severance in the circumstances of this case. A defendant’s stated testimonial intention is important but not dispositive: Durant, at para. 75. It may be overpowered by other factors, including whether there is “no significant disproportion in the strength of the Crown’s case” on different counts: R. v. Steele, 2006 BCCA 114, at para. 16, aff’d on other grounds, 2007 SCC 36, 2007 SC 36, [2007] 3 S.C.R. 3. Where the prosecution’s case is more or less strong on all counts, a defendant’s desire to testify on some but not all charges may have no practical effect on the outcome at trial. In such circumstances, testimonial intention will not necessarily be a strong factor indicating that severance is required in the interests of justice: Durant, at para. 75.

[190] I have inferred that the Applicant’s testimonial intention is based in what he sees as disproportion in the strength of the Crown’s case on the two sets of charges. I infer that this submission arises from the availability of surveillance videos and stills as evidence of the identity of the shooter, and the absence of such evidence as to the identity of the person in possession of the gun. However, the Crown position is that much of the evidence in relation to the shooting charges is also admissible in relation to the possession charges. I have already determined that this may indeed be so. The evidence of the surveillance video and stills does not provide evidence that speaks directly to the identity the person in possession of the gun. But it may well provide circumstantial evidence linking the shooter to the building in which the gun was found. When this is considered with the other available evidence (the distinctive shoes and clothing seen in the video and recovered in the apartment, the forensic analysis establishing that it was the same gun in both incidents), there is some evidence relating to the identity of the person in possession. If the surveillance video establishes that the Applicant was the shooter, there is some evidence from which the trier could infer that he was also in possession of the gun. I acknowledge that the Crown case in relation to the shooting charges appears stronger. But, in my view, this is not a “significant” disproportion in the strength of the Crown’s case.

[191] If I am mistaken on this point, I would still not sever the counts. In my view, the interests of justice and the truth-seeking function of the trial require a joint trial of all counts, even in the face of the Applicant’s testimonial intentions. The meaningful factual nexus between the sets of counts means that severance would result in two repetitive trials of similar duration. This would be a waste of precious justice system resources at a time when, in the wake of COVID-19, the courts are seriously backlogged. Court time is scarce and at a premium. The necessity of running two trials would introduce additional delay into this case, contrary to society’s interest in, and the Applicant’s constitutional right to, speedy justice. It would also require witnesses to testify twice. While the witnesses in this case are not civilian witnesses, the police and expert witnesses required would still be inconvenienced and the public forced to bear the cost of their encore performance. In addition, the Crown case is not complex. There is no risk of the jury becoming confused or overwhelmed in a joint trial. There is no need to sever counts to simplify or streamline in the interests of justice. The risk of prejudice to the Applicant in a joint trial of all counts, while present, is not overwhelming. A proper limiting instruction can mitigate that risk, and in my view, potential prejudice as ameliorated by such an instruction is outweighed by the societal benefits of a joint trial. Balancing all factors, I conclude that the Applicant has not established that severance is required in the interests of justice.

VI. DISPOSITION

[192] The Applicant’s right to be free from unreasonable search and seizure under s. 8 of the Charter was violated. The evidence of both fingerprint matches will be excluded under s. 24(2) of the Charter. The Charter application is allowed.

[193] The Applicant has not established that severance of counts 1-5 from counts 6-8 on the indictment is required in the interests of justice. The severance application is dismissed.

J. R. Presser J.

Released: May 4, 2023

COURT FILE NO.: CR-21-10000081

DATE: 20230504

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

Respondent

– and –

JAMAL FOGAH-PIERRE

Applicant

REASONS FOR DECISION

J. R. Presser J.

Released: May 4, 2023

[^1]: Under s. 128(4) of the YCJA, youth criminal convictions are to be removed from CPIC at the end of the applicable access period in s. 119, except for prohibition orders, which shall be removed only at the end of the period for which the order is in force. By contrast, under s. 128(3), RCMP records kept under s. 115(3) shall be destroyed or if required by the Librarian and Archivist of Canada, transmitted to the Librarian and Archivist of Canada, at the end of the applicable period in s. 119 or 120.

[^2]: A case where the TPS had sealed youth fingerprints and identifying documents but this action had no practical effect in limiting access.

[^3]: Or failure to prove one would necessarily mean that the Crown could not prove the other.

R. v. Fogah-Pierre, 2023 ONSC 2716

Case Summary

I. INTRODUCTION

II. THE CHARGES

III. BACKGROUND AND FACTS

A. The Agreed Statement of Facts

B. Evidence of Senior Fingerprint Examiner Carrie Weber

IV. THE CHARTER APPLICATION

A. The Alleged Breach of Section 8

1. The Applicable Law

2. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? A review of the relevant provisions of the YCJA

3. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? Positions of the Parties

4. Is the retention and use of fingerprints seized from a young person 23 months after the dismissal of the criminal charge that led to the taking of those fingerprints authorized by law? Analysis

5. Breach of Section 8 of the Charter: Conclusions

B. Section 24(2) of the Charter

1. The Applicable Law

2. Positions of the Parties

3. Analysis

V. THE SEVERANCE APPLICATION

1. Factual and Legal Nexus

2. Prejudice

3. The Applicant’s Intention to Testify

VI. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 3

Legislation 1