R. v. Greer, 2020 ONCJ 67

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Greer , 2020 ONCJ 67 DATE: 2020 02 03 COURT FILE No.: 3111 998 18 12541 BETWEEN: HER MAJESTY THE QUEEN — AND — SUSAN GREER Before Justice J. Freeman Heard on November 4, 2019 and December 6, 2019 Reasons for Judgment released on February 3, 2020

S. Stackhouse .................................................................................... counsel for the Crown A. Nathan……………………………………..……………….counsel for the complainant Z. Kerbel ................................................................ counsel for the defendant Susan Greer REASONS FOR JUDGMENT FREEMAN J.: A. Overview: [ 1 ] Susan Greer stands charged with one count of assault with a weapon with an alleged offence date of September 26, 2018. [ 2 ] Ms. Greer is a teacher employed by the Peel District School Board (the “School Board”).

On September 26, 2018, she was teaching at Judith Nyman Secondary School (hereinafter “JNSS”) where the complainant, M.W., was a male 16-year-old student (“the complainant”). It is alleged that Ms. Greer struck the complainant with her purse. [ 3 ] The defence brings a third-party records application seeking:

a) All records, notes, correspondence, emails, memoranda, statements (written, video or audio) or other documents in possession of the School Board or JNSS created or obtained during the course of the school or board investigation into the complainant’s allegations against the Applicant (the “investigation records”);

b) All records, entries, notes, memoranda or other documents in the School Board Student Information System (“SIS”) in the possession of JNSS or the School Board related to aggressive, intimidating, threatening or violent conduct on the part of the complainant (the “SIS records”);

c) All Safe School Incident Reports in the possession of JNSS or the School Board related to aggressive, intimidating, threatening or violent conduct on the part of the complainant; (the “Safe School Incident Reports”);

d) All portions of the complainant’s Individual Education Plan (“IEP”) and Ontario Student Record (“OSR”) in the possession of JNSS or the School Board related to aggressive intimidating, threatening or violent conduct/disposition on the part of the complainant; and

e) Any police records in the possession of the Toronto Police Service or the Peel Regional Police Service that are not producible under ss. 119 (

q) and 123 of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”). [ 4 ] The records in (b)-(

d) will hereinafter be referred to as the “violent disposition” records. [ 5 ] Counsel for the complainant conceded that the records sought in (

a) above are disclosable. Based on this concession, I ordered the release to the accused, after vetting, of the records created or obtained during the course of the investigation against Ms. Greer initiated by the School Board. [ 6 ] As for (b)-(d), counsel for the complainant disputes that the defence has satisfied the prerequisite of “likely relevant” to an issue at trial. [ 7 ] The records sought in category (b)-(

d) above, are limited to those containing information regarding “aggressive, threatening or violent” conduct on the part of the complainant, held by the School Board and JNSS. For the fifth category of documents, police records, the defence does not seek to limit the release of these documents to “aggressive, threatening or violent” conduct. [ 8 ] The records sought in categories (a)-(

d) above, are guided by the principles relevant to the disclosure of third-party records

established by numerous court decisions. See for example, R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 and R. v.McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66. [9] As for the fifth category of records sought, police records, these are subject to the regime established by the YCJA. [10] The defence also seeks disclosure of any school records relating to the credibility of the complainant, namely, accusations oftheft, cheating and dishonesty. Counsel for the complainant resists the release of these records and relies on her submissions maderegarding the disclosure of records referencing a violent disposition. B.

Records referencing a violent disposition - Common Law Principles: [11] A two-stage process has been established to determine whether the production of documents will be ordered. At the first stage,the accused must satisfy the court that the documents sought are “likely relevant”. Where the accused satisfies the court of the “likelyrelevance” of the records, the records are disclosed to the court for inspection. Thereafter, following further submissions, the courtdetermines what, if any, documents are producible to the defence.

The proper procedure was summarized by Justice Lamer in O’Connor,supra, at para. 21: According to L'Heureux-Dubé J., once the accused meets the "likely relevance" threshold, he or she must then satisfy the judge that thesalutary effects of ordering the documents produced to the court for inspection outweigh the deleterious effects of such production. Weare of the view that this balancing should be undertaken at the second stage of the procedure.

The "likely relevance" stage should beconfined to a question of whether the right to make full answer and defence is implicated by information contained in the records.Moreover, a judge will only be in an informed position to engage in the required balancing analysis once he or she has had anopportunity to review the records in question.

a) Stage 1 of the Analysis: [12] On November 4, 2019, submissions were made on the first stage of the analysis, namely, whether the records sought by thedefence are “likely relevant” to an issue at trial. The defence advised that the issue at trial will be self-defence. [13] After reviewing a video that captures some, but not all, of the interaction between Ms.

Greer and the complainant, thevideotaped statement of the complainant, the various Affidavits filed by the defence, and upon hearing submissions, I determined that thethreshold of “likely relevant” had been satisfied given the proposed defence of self-defence.

I provided oral reasons at that time,including the observation that at the first stage in the analysis, the defence is not required to meet an onerous standard as “likelyrelevant”, but only requires a “reasonable possibility” that the records sought would be relevant to the defence of self-defence: SeeO’Connor, supra, at para. 24. [14] Although the credibility of the complainant was not advanced until submissions made during the second stage of the analysis,the credibility of witnesses is a recognizable issue at a criminal trial: See O’Connor, supra, at para. 22. [15] Following my ruling, counsel for the complainant produced 5 envelopes containing the records sought.

I have reviewed thoserecords in anticipation of further submissions on stage two of the analysis. [16] On December 6, 2019, I heard submissions on the second stage of the analysis. At this time, further documents werediscovered to have been produced by the School Board in response to the subpoena. For reasons unknown, these documents were notprovided to the complainant on an earlier date when the documents produced pursuant to the original subpoena were released to counselfor the complainant.

With the agreement of counsel for the complainant, I ordered the documents disclosed for the court’s review, and itwas agreed that the submissions provided during the second stage of the analysis would apply to these documents as well.

b) Stage 2: [17] At this stage, the court, having reviewed the records, engages in a balancing of competing rights: the right of an accused tomake full answer and defence and the right of the complainant to privacy: O’Connor, supra, at para. 150. [18] At this stage in the analysis, the court considers the true relevancy of the document in order to ensure that the focus of theinquiry remains on the trial of the accused. “Once a court has ascertained upon inspection that third-party records are indeed relevant to

the accused’s case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easilyperformed. In effect, a finding of true relevance puts the third-party records in the same category for disclosure purposes as the fruits ofthe investigation against the accused in the hands of the prosecuting Crown under Stinchcombe”: McNeil, supra, at paras. 39 and 42. [19] A number of factors are considered before determining whether the records should be produced.

Those factors include: “(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias"; and "(5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of therecord in question". R. v. O’Connor, supra, at para. 31. [20] I will turn now to a consideration of these factors.

i) Extent to which the record is necessary for Ms. Greer to make full answer and defence: [21] As noted, defence counsel advises that Ms. Greer will be putting forth a defence of self-defence. I have been advised that Ms.Greer will be submitting that it was the complainant who was the aggressor and any actions taken by her that might otherwise constitutethe offence of assault are justified by the defence of self-defence. [22] Counsel for Ms.

Greer relies on the well-established proposition that “previous specific acts of violence by a third party whichhave significant probative value to prove a disposition for violence are admissible where such disposition is relevant”: R. v. Scopelliti, (ON CA), [1981] O.J.

No. 3157, at para. 37. [23] This includes acts of violence not previously known to the accused: Scopelliti, at para. 46. [24] The ability of the defence to advance a claim of self-defence will be significantly hampered if the disclosure of records,proximate in time to the alleged offence, are not disclosed. [25] Additionally, the ability to challenge the credibility of the complainant will be enhanced by the disclosure of records reflectingupon dishonesty. ii) Probative Value of the Records in Question: [26] Records which show acts of aggression, intimidation, threatening or violent conduct on the part of the complainant may behighly relevant to the violent disposition of the complainant and therefore, support a claim of self-defence. [27] However, I note that not all records are equally relevant to the issue of self-defence.

For example, records that do not disclose“aggressive, intimidating, threatening or violent” conduct would not be relevant to establishing the disposition of the complainant forviolence. Similarly, records that are remote in time from the date of the alleged offence may have little probative value. [28] Counsel for the complainant submits that records that are older than two years from the date of the offence should not bedisclosed.

Counsel for the complainant further submits that only records containing allegations of violent disposition towards teachersshould be disclosed; and any records containing a violent disposition towards students or others should not be disclosed. [29] While it may be true that a student may be less inclined to be violent towards a teacher than a student, it cannot be argued thatinstances of violent disposition towards a fellow student are not relevant. In my view, all incidents revealing a potential for a violentdisposition would be relevant to a claim for self-defence established at trial.

[ 30 ] However, it must be recalled that the records being considered are school records. As the complainant is presently 18 years of age, there are approximately 13 years of school records. There would be little, if any, probative value to records that are remote in time from the date of the alleged incident. [ 31 ] Moreover, it must be borne in mind that the records disclose a complainant at various stages of development, from the approximate age of 5 years of age to the adult age of 18 years.

Clearly, records from the complainant’s early years would have little, if any, probative value in establishing a potential violent disposition at the age of 16 years, when the offence is alleged to have been committed against the complainant. [ 32 ] In my view, the line should be drawn at the age of 12 years of age. This is, of course, the age in which the YCJA applies to young people, requiring such persons to take responsibility for his or her actions.

Any cut-off line may be viewed by reasonable people as arbitrarily drawn, but in my view, records commencing from the timeframe in which the complainant is 12 years of age or older properly reflects a time wherein there is a legal obligation placed upon the complainant to take responsibility for his actions.

The limitation of the disclosure of records commencing from the time the complainant reached the age of 12 years reflects an acknowledgement that earlier records have little probative value given both their remoteness in time as well as the developmental changes that take place as a child grows toward adulthood. [ 33 ] The records that I am prepared to release contain instances where the complainant arguably reveals a disposition for violent tendencies.

Such records include: documented suspensions for aggressive or threatening behaviour and the special arrangements put into place by various educators to address aggressive or threatening behaviour. [ 34 ] Additionally, to a lesser extent, there is at least one school record that documents a suspension for dishonest behaviour. [ 35 ] Given that the records to be disclosed are limited in time, and to instances of aggressive or threatening or dishonest behaviour, these records are highly probative to the issues to be litigated at trial. iii) The Nature and Extent of the Reasonable Expectation of Privacy [ 36 ] The records disclose objective results of scholastic testing and grades achieved.

The records also disclose observations of the complainant and allegations of misconduct. [ 37 ] The complainant has a higher expectation of privacy in the category of testing and results as these pertain to inherent characteristics of the complainant.

Further, as these records are not being sought by the defence, this reasonable expectation of privacy is preserved. [ 38 ] The latter category, namely observations and allegations of misconduct, are third parties’ perceptions and experiences with the complainant and therefore, have a lesser expectation of privacy. iv) Whether production of a record is premised on any discriminatory belief or bias: [ 39 ] This factor has no application to the facts of this case.

v) The potential prejudice to the Complainant’s Dignity, Privacy or Security of the Person: [ 40 ] This factor has little application to the facts of this case. [ 41 ] The complainant will already be present at trial and will be subject to cross-examination on his disposition for violence and will be subject to challenges to his credibility regardless of whether the records are disclosed. vi)

Summary of School Board Records: [ 42 ] The records to be disclosed to the defence will be those where there are observations of violent disposition and/or incidents of misconduct disclosed, relevant to either credibility or violent disposition. There will be no distinction made between acts of violence towards a teacher and acts of aggression towards a fellow student. Records will be limited to the timeframe in which the complainant reached the age of 12 years of age. Finally, the records will be vetted so that only the disclosable information is produced.

C. Police Records: [ 43 ] The fifth category of documents sought by the defence relates to records in the hands of the police. Access to such records are determined pursuant to the provisions of the YCJA , supra . There are several categories of police records in the within case:

a) Records for which no charge was laid and the record indicates extrajudicial measures were applied;

b) Records for which no charge was laid, but the records are silent on whether the police engaged extrajudicial measures;

c) Records for which a charge was laid and disposed of, including by means of extrajudicial sanctions, or by way of a withdrawal or stay of the charge, or by a finding of guilt. Within this category, there are two sub-categories: one where an access period is still in effect and the second sub-category where the access period has expired; and

d) Records pertaining to any outstanding charges. [ 44 ] I will deal with each of these separately.

a) Records for which no charge was laid and the record indicates extrajudicial measures were applied : [ 45 ] “Extrajudicial measures” is defined in s. 2 of the YCJA as ”measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence and includes extrajudicial sanctions.” [ 46 ] The rationale behind the employment of extrajudicial measures has been described as: Extrajudicial measures “seek to respond to youth offending in “a less intrusive, more informal, and more expeditious fashion” than can be achieved through the courts (Bala and Anand, at p. 340)… Such measures include simple warnings or cautions; referrals to programs or agencies in the community; and, if those measures would prove inadequate, “extrajudicial sanctions” (see YCJA , ss. 6 to 8 and 10 ; B.

Jones, E. Rhodes and M. Birdsell, Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner’s Handbook , in Criminal Law Series , B. H. Greenspan and V. Rondinelli, eds. (2016), at p. 128). R. v. K.J.M. , 2019 SCC 55 at para. 86 . [ 47 ] Further, as stated by Justice Moldaver in K.J.M. , supra , at para. 87 : The YCJA treats extrajudicial measures as an essential tool in the youth justice toolbox. It recognizes in its

Preamble that the youth criminal justice system should “reserv[e] its most serious intervention for the most serious crimes” and reduce its “over-reliance on incarceration for non-violent young persons”. The central role of extrajudicial measures in the youth criminal justice system is recognized in s. 4 (

a) and (

b) of the YCJA , which declare that “extrajudicial measures are often the most appropriate and effective way to address youth crime” and that “extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour”. Moreover, s. 4(

c) creates a presumption that extrajudicial measures are “adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not previously been found guilty of an offence”, while s. 6(1) requires police to consider extrajudicial measures before starting judicial proceedings.

As a consequence of this emphasis on extrajudicial measures, the YCJA has “resulted in a significant drop in the number of youth charged and an increase in the use of various methods of diversion” (Bala and Anand, at p. 387). [ 48 ] Section 119(4) of the YCJA states that access to a record in respect of extrajudicial measures, other than extrajudicial sanctions, used in respect of a young person shall be given only to a prescribed group of persons which does not include an accused person, s. 119(4) . Therefore, Ms. Greer would not be entitled to such records.

b) Records for which no charge was laid, but the records are silent on whether the police engaged extrajudicial measures: [ 49 ] This is a more difficult category of documents as there are four police reports referencing incidents where no charge was laid but the police report does not disclose whether extrajudicial measures were utilized (“the silent record”). One occurrence record is

clearly irrelevant and as such, I need not consider this record further. [ 50 ] In cases dealing with silent records, there appears to be two conflicting views as to whether such occurrence reports are disclosable. [ 51 ] Counsel for the complainant takes the position that these records should be treated as if extrajudicial measures were utilized, therefore making them non-disclosable. The defence submits that unless the records indicate that extrajudicial measures were utilized, the records are disclosable. [ 52 ] The records at issue were created during the course of a police investigation in which no charges were laid.

Section 2 of the YCJA defines a “record” as including: any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act. [ 53 ] The retention of records is permitted by s. 115 of the YCJA which states: 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. [ 54 ] As I understand it, the records at issue were retained by Peel Regional Police Services and produced in response to a subpoena obtained by the Applicant. [ 55 ]

Section 118 of the YCJA prohibits the disclosure of any record kept under sections 114 - 116 , “except as authorized or required by this Act.” The Position of the Complainant: [ 56 ] In support of her position, counsel for the complainant relies on the case of R. v. A.B. , [2015] O.J. No. 7113 , a decision of Justice Downes. Justice Downes reached the conclusion that occurrence reports resulting in no charges were not disclosable even when there was no explicit mention that extrajudicial measures were used. His Honour cited the decision of Justice Weagant in Ontario (Human Rights Commission) v. Toronto Police Services Board , [2008] O.J. No. 4546 (CJ) at para. 41 : In

summary, it is my opinion that an expansive view of what constitutes a record of an extrajudicial measure has to be the one taken, and that view starts with whether the record was one that was intended to be caught by the section, not by trying to figure out what was in the mind of the officer who created the record during an investigation and ultimately did not lay a charge. [ 57 ] A review of the decision in Ontario (Human Rights Commission) v.

Toronto Police Services Board, supra , reveals that the court was concerned that occurrence reports contain mere allegations, are inherently unreliable, and thus deserving of the increased protection afforded by s. 119(4) of the YCJA : see paras. 34-35.

Justice Weagant concluded at para. 40 that: Given the YCJA 's strong philosophical foundation that the privacy interests of young people are inextricably entwined with optimal rehabilitative outcomes, it makes perfect sense that Parliament would want to stop the free currency of records generated in situations where a young person is alleged to have committed an offence but no charges are laid.

If the policy reasons supporting identity protection in the cases of records of a finding of guilt of a young person seem manifestly obvious, why would not the gravamen of those same reasons be multiplied exponentially in the cases of records created because of mere unproven allegations? [ 58 ] The rationale adopted by Justice Downes for prohibiting disclosure of such records has been adopted by at least one other jurist, see: R. v. Gure , 2019 ONCJ 585 (Can LII).

[59] An additional rationale for prohibiting the disclosure of these records may be found in s. 118 of the YCJA. [60] The defence submits that I should be guided by Justice Borenstein in his decisions, R. v. J.B., 2008 ONCJ 208 , [2008]O.J. No. 1719 and R. v. B. (J.), 2008 ONCJ 209. [61] In J.B., supra, His Honour found that records that were in the same category as the records at issue were disclosable, providedthe Applicant meets the test set out in s. 123 of the YCJA.

His Honour noted that s. 119 (1) of the YCJA permits the disclosure of arecord created under s. 115 of the YCJA, subject to the various access periods contained in s. 119(2). As records for which the use ofextrajudicial measures was not explicitly utilized are not subject to access periods, they are available provided the more stringent test setout in s. 123 of the YCJA is met.

Justice Borenstein found that this approach was more consistent with s. 119 of the YCJA whichprovides for a shorter access period where a young person is acquitted or discharged than if the person was found guilty, thus permittingthe record to be accessed for a shorter period of time in the cases of an acquittal or withdrawal before the Applicant is required to meetthe more stringent test sought out in s. 123 of the YCJA, see R. v. J.B., supra, at para. 22.

Analysis: [62] With the greatest of respect to my colleagues who have adopted an alternative viewpoint, in my view, the approach of JusticeBorenstein is preferable. [63] Aside from s. 119(4), all other youth records may be disclosed, provided that the requisite tests are met. This includes situationswhere the young person has been acquitted. There may be many reasons why a young person is acquitted, including the unavailabilityof a witness after arraignment or lack of evidence on an essential element of the offence.

However, it must be borne in mind that “as amatter of fundamental policy in the administration of the criminal law, it must be accepted by the Crown in a subsequent criminalproceeding that an acquittal is the equivalent to a finding of innocence": R. v.

Grdic, (SCC), [1985] 1 SCR 810, [1985] 1RCS 810, [1985] SCJ No. 41, [1985] ACS No. 41, at para. 35. [64] If Parliament did not prohibit the disclosure of youth occurrence records after a youth was acquitted, and therefore not guilty inlaw, why is it that untested allegations are not disclosable, provided the officer did not note that extrajudicial measures were employed? In my view, untested allegations, where there remains at least the possibility of truth to the allegations, are no more deserving ofprotection than allegations that have been tested in a court and the young person found innocent.

Indeed, arguably, the greatestprotections should be reserved for those situations where a young person has been found not guilty, yet such records are disclosableunder s. 119 (2)(

b) or, s. 123 if the access period has expired. [65] Further, where charges are withdrawn by the Crown, s. 119 (2)(

c) provides that again, assuming the other criteria is satisfied,occurrence records underlying such incidents are disclosable.

Although a Crown Attorney has reviewed the incident and concluded, forany number of reasons, to withdraw the charge, the allegations contained in the accompanying occurrence report remain untested, yetParliament does not prohibit the disclosure of those untested allegations. [66] Moreover, beyond the specific provisions of the YCJA, it must be kept in mind that the jurisprudence establishes that s. 7 of theCharter includes the right to disclosure of relevant evidence necessary to make full answer and defence in response to an allegation ofcriminal wrongdoing.

The general principles hold that information ought not to be withheld if there is a reasonable possibility that thewithholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified bythe law of privilege, see: R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at p. 340. [67] Disclosure of records that may be highly relevant to issues at a trial should be the norm, subject to limitations placed upon themby law.

I see no reason to withhold potentially relevant documents from an accused whose liberty is at stake, unless clearly prohibitedor otherwise not authorized by law. [68] In this case, there are three records which potentially raise issues of violent disposition or credibility. These records do notdisclose that extrajudicial measures were utilized, and thus, these documents may be disclosed provided that the test set out in s. 123 ofthe YCJA is met. This will be considered in the

section below.

c) Records for which a charge was laid and disposed of, including by means of extrajudicial sanctions, or of a withdrawal orstay of the charge, or by a finding of guilt: [69] Within this category, there are two sub-categories: one where an access period is still in effect and the second sub-categorywhere the access period has expired. [70] In the within case, the access period has expired for all occurrence reports where a charge was laid. In such a case, s. 123 of theYCJA applies, considered in the

section below.

d) Records pertaining to an outstanding charge: [71] I have been advised that in the within case, there is one outstanding charge which the Crown has disclosed particulars to the

defence. D. Application of s. 123 of the YCJA : [ 72 ] Section 123(1) (

a) of the YCJA states: 123

(1) A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2) , order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person, (

a) if the youth justice court judge is satisfied that (

i) the person has a valid and substantial interest in the record or part, (ii) it is necessary for access to be given to the record or

part in the interest of the proper administration of justice, and (iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province; or [ 73 ] There are six occurrence reports dealing with incidents which resulted in a charge.

Additionally, there are the three occurrence reports previously discussed which contain allegations of aggressive or threatening behaviour for which a charge was not laid but the record does not disclose that the police utilized extrajudicial measures. [ 74 ] The proper administration of justice would surely include a criminal trial where Charter rights are respected, and the privacy rights of a young person must yield to the fair trial rights of an accused.

Such rights would include the right to a fair trial including disclosure of highly relevant material that would assist an accused to make “full answer and defence.” Records that reveal the complainant potentially has a disposition for violence would clearly be vitally important to the defence and the denial of these records would be contrary to the interest of the proper administration of justice. Similarly, where the record discloses allegations that may bear upon the credibility of the complainant, the proper administration of justice requires that the defence be provided with such evidence.

Clearly, an accused has a “valid and substantial interest” in all such records. [ 75 ] All occurrence reports revealing a violent disposition or issues with credibility, will be disclosed. There are nine such records. These records all date from 2015 onwards, at a time when the complainant was at least 12 years of age, an age for which I have already determined should be the starting point for the release of any records. E. Conclusion: [ 76 ] I have prepared for release, school records and occurrence reports that in my view, meet the tests outlined herein.

I have vetted out clearly irrelevant information, information that refers to a time when the complainant was under the age of 12 years old and contact information of persons referred to in the various documents who are not otherwise employed in a professional capacity. A copy of the released documents shall be made an exhibit on this Application. F.

Restrictions on the Use of the Documents: [ 77 ] Defence counsel or his designate shall retain the documents in his possession or control at his place of business except when the material is in possession or control of his/her private investigator, should one be employed. [ 78 ] A copy of this order shall be provided to any private investigator employed by defence counsel or his designate and the investigator will be subject to the conditions of this order. [ 79 ] Defence counsel or his designate shall keep the documents in a secure locked place within his office when it is not being reviewed. [ 80 ] No one, including the accused, shall have unsupervised possession or control of the material, except defence counsel or his designate or any investigator employed by the defence and any access to the records by the accused shall be supervised by defence counsel or his designate. [ 81 ] No one shall be permitted to view the material except defence counsel or his designate or the accused under the direct supervision of defence counsel or his designate, or a private investigator employed by the defence. [ 82 ] Defence counsel or his designate shall obtain and enforce a binding undertaking or agreement from any private investigator the defence may employ, who will have access to these materials, that the defence investigator will not use, transfer, copy, or permit access to these records for any purpose other than as permitted by this Order.

[ 83 ] Defence counsel or his designate shall ensure that the defence investigator retained to assist in the defence shall retain them in his/her possession or control and return them personally and directly to defence counsel or his designate upon completion of the investigation. [ 84 ] In the event of any change of counsel or termination of the relationship between the accused the records shall be delivered directly to the Crown Attorney by defence counsel or his designate. [ 85 ] The documents and any copies shall be returned to the Office of the Crown Attorney at the conclusion of this case and after the expiry of any appeal periods. Released: February 3, 2020 Justice J. Freeman