R v Mosa, 2016 ABQB 336

Court of Queen’s Bench of Alberta Citation: R v Mosa, 2016 ABQB 336 Date: 20160617 Docket: 131114662Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Ahmad Mosa Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Decision on Motion of the Honourable Mr. Justice R.J. Hall _______________________________________________________

[ 1 ] The accused is charged with committing a sexual assault on October 20, 2012. During trial, he brought a Charter application arguing that investigators unlawfully obtained DNA evidence. This is my ruling on the application. Background [ 2 ] During the investigation of the offence, various swabs of the complainant were obtained and submitted for comparison in the DNA data bank. The DNA data bank stores DNA profiles of previously convicted offenders. The Calgary Police was informed that a match was made between the swabs and a sample in the data bank identified as belonging to Ahmad Mosa.

The Police used evidence of this “match” as grounds for seeking a DNA warrant under s. 487.05 of the Criminal Code . The warrant allowed the Police to obtain a DNA sample from Mr. Mosa which was compared to the swabs, and he was charged with the offence. [ 3 ] Mr. Mosa’s DNA profile was in the DNA data bank because of a prior conviction in 2010. At the time of the prior conviction, Mr. Mosa was a youth, and was convicted under the provisions of the Youth Criminal Justice Act . [ 4 ] Mr.

Mosa argues that access to youth records, including his DNA in the DNA data bank, is governed by the Youth Criminal Justice Act . His position is that under that Act , a request to access his DNA profile was required through application to a youth justice court judge before the Police could be informed of the “match”. This did not occur. As such, Mr. Mosa argues his DNA was improperly obtained by Police and their warrant for his DNA was based on unlawfully obtained evidence.

Absent this unlawfully obtained evidence, the police would not have reasonable grounds to justify getting a warrant to obtain a sample of his DNA. As the seizure of Mr. Mosa’s DNA was the result of an unlawful search and seizure, any evidence obtained as a result ought to be excluded under

section 24 of the Charter . [ 5 ] The Crown’s position is that the Youth Criminal Justice Act does not require the Police to obtain permission from a youth justice court judge before a DNA match is communicated to them, and that the evidence was lawfully obtained. Crown counsel argues that the Youth Criminal Justice Act , Criminal Code and the DNA Identification Act work in consort to create a legislative regime for the collection, use, retention and access to information in the DNA data bank. Relevant Legislation [ 6 ]

Part 6 of the Youth Criminal Justice Act , SC 2002, c.1 , ( the “ YCJA” ) contains provisions to protect the identify of young persons and any records that were generated as a result of their involvement in the youth criminal justice system.

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”: R v K.M., 2011 ONCA 252 , 232 C.R.R. (2d) 152, at para 41 [this case is also referred to as R v C.S. ]. Access to records under the YCJA is strictly controlled in order to provide enhanced procedural and privacy protections to youth dealt with under the Act . [ 7 ] Sections 114 to 117 of

Part 6 come under the heading of “Records that May be Kept” and include records of cases under the Act , police records, records held by RCMP, and government records. For the purposes of this application, counsel were in agreement that the DNA profile in the data bank was a youth record falling under s. 115 or s. 116(1)(c): Records That May Be Kept Youth justice court, review board and other courts 114 A youth justice court, review board or any court dealing with matters arising out of proceedings under this Act may keep a record of any case that comes before it arising under this Act. 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. ... 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. Government records

(1) A department or an agency of any government in Canada may keep records containing information obtained by the department or agency (

a) for the purposes of an investigation of an offence alleged to have been committed by a young person; ... (

c) for the purpose of administering a youth sentence or an order of the youth justice court; ... [ 8 ] Access to Records is dealt with under sections 117 to

Section 118 provides there is no access to a record kept under sections 114-116 unless authorized by the Act . Access to Records Exception — adult sentence 117 Sections 118 to 129 do not apply to records kept in respect of an offence for which an adult sentence has been imposed once the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed and the appeal court has upheld an adult sentence. ... 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. ... [ 9 ] Section 119(1) provides authorization to access records in a long list of enumerated persons during the access period set out in s 119(2).

Importantly, in all cases access is given “on request”, and access “shall” be given to records under s. 114 (court records) and “may” be given to records under ss. 115(police records) and s. 116 (government records): Persons having access to records 119

(1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record kept under

section 114, and may be given access to a record kept under sections 115 and 116: (

a) the young person to whom the record relates; (

b) the young person’s counsel, or any representative of that counsel; (

c) the Attorney General ... [ 10 ] Counsel were in agreement that access to the DNA profile in this case was sought by law enforcement, and the applicable provision is s. 119(1)(g), which allows peace officers to access records for “law enforcement purposes”. [ 11 ] Section 119(2) limits the period of access to records, which differs depending on the outcome of the case. For example, for a conditional discharge the period of access is three years after the youth is found guilty. For

summary conviction offences, the period is three years after the youth sentence imposed has been completed. [ 12 ] The other legislation at play in this case is the DNA Identification Act, SC 1998, c. 37 (the “ DNA Act ”) . The DNA Act establishes a national DNA data bank to help law enforcement agencies identify persons alleged to have committed a crime.

The Act operates by storing and attempting to match DNA samples taken pursuant to sections in the Criminal Code . [ 13 ] Under sections 5.1 and 6, the Commissioner (of the RCMP) is tasked with reviewing the transmitted information, conducting a DNA analysis, entering a DNA profile in the convicted offenders index, comparing the profile to already existing profiles in the data bank, and providing the results of the comparison to law enforcement. [ 14 ] Importantly, there are provisions in the DNA Act that relate to youth records and the removal and destruction of the bodily substances that are collected.

The sections provide that the information in the data bank will be permanently removed and destroyed when the record relating to the offence is required to be destroyed or sealed or transmitted under

Part 6 of the Youth Criminal Justice Act : Young persons — access to information removed 9.1

(1) Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under

Part 6 of the Youth Criminal Justice Act.

Exception

(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to (

a) a serious violent offence as defined in subsection 2(1) of the Youth Criminal Justice Act ; or (

b) a record to which subsection 120(6) of that Act applies. ... Young persons — destruction of bodily substances 10.1

(1) The Commissioner shall, without delay, destroy stored bodily substances of a young person who has been found guilty of a designated offence under the Young Offenders Act or under the Youth Criminal Justice Act when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under

Part 6 of the Youth Criminal Justice Act. Exception (2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to (

a) a serious violent offence as defined in subsection 2(1) of the Youth Criminal Justice Act ; or (

b) a record to which subsection 120(6) of that Act applies [ 15 ] The Ontario Court of Appeal has upheld the constitutionality of the Criminal Code provisions which require youth convicted of serious offences to automatically have their DNA collected for the DNA data bank: R v K.M. , 2011 ONCA 252 , 232 C.R.R. (2d) 152 [also referred to as R v C.S. ]. The Court of Appeal found the Criminal Code provisions were reasonable and achieved a proper balance between the interests of the state and the privacy interests of young persons.

It noted the importance of DNA evidence to law enforcement and the administration of justice, both by allowing the successful identification and prosecution of dangerous criminals, and by exonerating persons who are wrongfully suspected or convicted. [ 16 ] The Court found that although there is a loss of privacy for youth when their DNA is sampled, their privacy interests are protected by the scheme in the DNA Act that ensures DNA samples are only used for forensic identification purposes by law enforcement.

Additionally, there are special safeguards in place to protect the privacy interests of young persons through s. 9.1 and 10.1 of the DNA Act , as those provisions on accessing and removing youth DNA records are in conformity with the provisions under

Part 6 of the Youth Criminal Justice Act , at para 39: For present purposes, ss. 9.1 and 10.1 of the DNAIA are of particular importance. They focus on access to youth records and the removal and destruction of bodily substances that have been collected from young persons for purposes of inclusion in the NDDB. Both sections provide that in the case of young persons, the information in the NDDB shall be permanently removed and the bodily substances destroyed "when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under

Part 6 of the Youth Criminal Justice Act ". [ 17 ] The Court found Parliament had obviously considered the special privacy concerns of young offenders by enacting retention periods for their DNA records. The Court termed these provisions “youth-specific safeguards”, at para 101: In enacting specific retention periods for DNA records in respect of young offenders, Parliament obviously had in mind the special privacy concerns that apply to young persons.

By incorporating "youth-specific" safeguards into the legislation, Parliament made sure that the retention of DNA records would be treated no differently than other identification procedures in connection with young persons, such as fingerprinting and photographs. [ 18 ] Ultimately, the Court concluded that under the circumstances, requiring young persons to provide DNA samples for a limited purpose and for a limited period of time is eminently reasonable.

It allows the state to meet a highly important objective and does not lead to a general loss of the youth’s identity or the intimate details of their biological make-up, at paras 131-132. Analysis [ 19 ] I note that there is no challenge in this case to the actual legislation, nor is there an allegation that Mr. Mosa’s DNA was accessed outside of the access period. Mr. Mosa’s position is that the “match” in the data bank was improperly obtained because access should have been requested first from a youth justice court judge. [ 20 ] In support of Mr.

Mosa’s position, counsel argues the scheme under sections 118 and 119 of the YCJA prohibit access to a DNA record without authorization. The relevant wording in section 119(1) requires a “request” to be made and specifies that the record “may” be given. This implies a discretionary decision is required, and counsel submits that the only appropriate person to authorize such access is a youth court judge. [ 21 ] Counsel for Mr. Mosa relies on the case of R v T.D. , 2011 BCPC 428 , [2011] B.C.J.No. 2626.

An accused sought the youth court records of the complainant in order to make a full answer and defence to the charges. Application was made to the youth court for the records, pursuant to s. 119 (1) (q), at para. 3: 119

(1) Subject to subsections. . . the following persons, on request, shall be given access to a record kept under

section 114, and may be

given access to a record kept under sections 115 and 116: . . . (

q) an accused or his or her counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer anddefence. [22] The Court considered the application and granted access to the record. [23] Counsel for Mr. Mosa cites this case as an example of the normal procedure followed under s. 119(1) requests, which is thatauthorization is considered and granted by the youth court. By analogy, she maintains that a similar application should have been madebefore accessing Mr. Mosa’s DNA profile. Such an application would allow the court to assess whether there were privacy concerns thatwould prevent release of the record. [24] Crown counsel’s

interpretation of the proper procedure for s. 119(1) requests differs. Her position is that the request for arecord goes to the record keeper, and an application to a youth court judge is unnecessary. In support of this position, counsel notes that, of the many enumerated persons who may access records in paragraphs (

a) through (

s) of s. 119(1), only one paragraph requiresapplication to the youth court: s 119(1)(s). Section 119(1)(s), is a discretionary catch all provision that allows any person to apply to ayouth court judge for a record : 119

(1) Subject to subsections. . . the following persons, on request, shall be given access to a record kept under

section 114, and may begiven access to a record kept under sections 115 and 116: . . . (

s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extentdirected by the judge, if the judge is satisfied that access to the record is (

i) desirable in the public interest for research or statistical purposes, or (ii) desirable in the interest of the proper administration of justice. [25] Counsel submits that, as this provision specifically requires the request to go to a youth court judge, it can be presumedthrough rules of statutory

interpretation that the legislature did not intend the other enumerated requests be made to youth court. [26] In further support of this position, counsel referred to the case of L.(S.) v. B.(N.), (ON CA), 252 D.L.R. (4th) 508, 196 O.A.C. 320, from the Ontario Court of Appeal. This case considered how an application for a youth record could be madeby a victim, pursuant to s 119 (1)(d). The Court held that such an application did not require a formal motion to a court, but could bemade to a court administrator, or to the Crown Attorney, at paras 47 and 49: S.L. is a victim.

Counsel for the L.s [sic] could have gone to the Ontario Court of Justice immediately upon commencing this action inSeptember 2002 and requested access to the court's records. This procedure does not require a formal motion to the court or noticeto any individuals. It involves a simple request to the court office, presumably directed to a court administrator. … … Counsel for the respondents could have requested access to the Crown Attorney's records. The request is an informal one and does notrequire notice to other parties.

Had such a request been made, I assume the Crown would have given good faith consideration to therequest and taken into account S.L.'s status as a victim, the purpose for which the documents were sought, and the nature of thedocuments in the Crown Attorney's possession. … [underlining added] [27] This suggests the proper procedure under

section 119 is to request the record from the record keeper. Additionally, in caseswhere the request is refused, the applicant can then resort to the catch all in s. 119(1)(

s) and apply to the youth court; see paras 50-51below: Section 119(1)(

s) is a significant feature of the access regime set up in the YCJA. It dictates that access to any record kept under ss. 114or 116 may be given to: 119. Any person ... that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if thejudge is satisfied that access to the record is ... (ii) desirable in the interest of the proper administration of justice. This subsection allows any person, including the victim, to bring a motion before a youth justice court judge for an order allowing accessto any of the records made and kept under the Act.

A victim could first request access to the records in the court and in the possession ofthe Crown Attorney. If dissatisfied with the access granted pursuant to those requests, counsel for the victim could bring a motion unders. 119(1)(

s) for more complete access. Counsel for the respondents could have followed that procedure. [28] Relying on this law, Crown counsel submits that in the case of DNA records at the DNA data bank, a simple request can bemade by law enforcement to the record keeper at the DNA data bank. This procedure was properly followed in this case. [29] The Crown further says that the DNA Act makes provision within its legislation to protect youth records, which was alsofollowed in this case. An affidavit sworn by Ingrid Muhlig, who is a Criminal Records Reviewer with the RCMP. Ms.

Muhlig reviewedthe procedure followed in this case. She confirmed that before the “match” with Mr. Mosa was reported, a review of Mr. Mosa’scriminal record was performed to confirm that the access period had not expired.

Findings [ 30 ] I agree with the position espoused by the Crown.

Section 119 gives discretion to the record keeper, as to whether to honour the request for production of the record. Should that record keeper exercise his or her discretion against producing the record, the applicant can then make application to a youth court judge, pursuant to the provisions of s.119(1)(s). Here, such application was unnecessary since the record keeper honoured the police request.

Therefore, I find that the provisions of the Youth Criminal Justice Act regarding access to records have been followed in this case. [ 31 ] The combination of protections in the YCJA and the DNA Act sufficiently protect the privacy interests of youth in their DNA profiles. The DNA Act ’s sole purpose is to help law enforcement identify persons alleged to have committed offences, and use of the DNA records is limited accordingly.

The YCJA provisions on destroying youth records have been incorporated into the DNA Act , confirming Parliament directed its mind to youth records when enacting the legislation. [ 32 ] In Mr. Mosa’s case, the provisions on accessing youth records in the YCJA and the DNA Act were properly followed and his DNA evidence was lawfully obtained. Accordingly, his application is denied. Heard on the 14 th day of June, 2016. Dated at the City of Calgary, Alberta this 17 th day of June, 2016. R.J. Hall J.C.Q.B.A. Appearances: Pamela McCluskey for the Crown Katherin Beyak

for the Accused