Director of Civil Forfeiture Date:, 2013 BCPC 33

Citation: Director of Civil Forfeiture Date: 20130221 2013 BCPC 0033 File No: 5619-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION PURSUANT TO THE PROVISIONS OF

SECTION 119 OF THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, c.1 FOR THE DISCLOSURE OF CERTAIN RECORDS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.F. BROOKS Counsel for the Director of Civil Forfeiture : J. Van Camp Place of Hearing: Victoria , B.C. Date of Hearing: January 29, 2013 Date of Judgment: Februry 21, 2013 INTRODUCTION [ 1 ] The Director of Civil Forfeiture applies for access to records held by the Victoria City Police. Those records relate to the identity of a young person who is alleged to have engaged in acts contrary to the law. The young person has not been charged with any offence. The

section of the Youth Criminal Justice Act S.C. 2002, c.1(hereinafter YCJA ) which permits access to this kind of record is

silent about doing so in circumstances where no charges are laid. Accordingly, the issue in this application is whether a proper

interpretation of the provisions of the YCJA permits access to police records where the young person has not been charged. [ 2 ] Although notice was given to the Victoria City Police, the investigating agency in possession of the records in question, they did not appear on the application. BACKGROUND TO THE APPLICATION [ 3 ] As a first step to determining the merits of the application it is necessary to understand the factual background. [ 4 ] The Director of Civil Forfeiture has commenced a claim in the Supreme Court (Action No.

VIC-S-S-124246) against four named individuals and the young person who is the subject of this application. The young person is identified in that action as John Doe given the non-disclosure by the Victoria City Police of the identity of the young person. [ 5 ] The Director’s claim is for the forfeiture of $6510 seized on October 4, 2012. That forfeiture occurred in the following circumstances. Members of the Victoria City Police observed a young person pay for a hotel room with a large roll of cash. The front desk worker told the police that the young person was staying in room #364.

The youth was detained by the police as he was about to enter that room. In the room were the four other individuals named in the Supreme Court claim. Drugs and related items were found in the room as well as $5730 in cash. On the young person was crack cocaine and $780. As has been mentioned, no charges have been forwarded to Crown counsel. [ 6 ] The Civil Forfeiture Act S.B.C. Ch. 29 permits the Director to bring a claim for the forfeiture of property where that property is the proceeds of unlawful activity.

S. 4 of the Civil Forfeiture Act sets out the necessary parties as including any person who has an interest in the property. It follows that, in order to fulfill that statutory obligation, the Director must include the young person in this investigation as a named party. In order to properly name and proceed against the young person, the Director brings this application. RESTRICTION ON ACCESS TO YCJA RECORDS [ 7 ] In order to understand the position taken by the Director, it is necessary to understand the scheme of the YCJA as it relates to records.

The restriction on access to records relevant to this application is contained in s. 118 of the YCJA . S. 118 of the YCJA is one

section in

Part 6 of the Act which deals with the restriction of access to various kinds of youth records. It is not contested that, absent an exception to s. 118, this application must fail. The statutory exceptions to s. 118 are contained in s. 119 of the YCJA. [ 8 ] The issue more precisely stated therefore becomes whether the application of the Director of Civil Forfeiture is permitted by s. 119 of the YCJA . [ 9 ] S. 119(1) sets out the persons who may have access to youth records.

To that long list of persons is added a “catch-all” category in subsection (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 extent directed 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. [ 10 ] S. 119 restricts not only who may have access to youth records. s. 119(2) restricts the periods of time during which access to the records may be sought. The access is available from the date the records were created until the “end of the applicable period”. The ‘end of the applicable period’ varies depending on what type of result occurred after criminal proceedings had completed. For example, the records may be accessed for three months after an acquittal (s. 119(2)(b)) or three years after the completion of a

summary conviction sentence (s. 119(2)(g)). The difficulty created in this application and already referred to is that no criminal proceedings have been commenced. S. 119(2) is silent as to the end date for which access to records may be granted where no criminal charges are laid. Does that legislative silence mean that there is to be no access to records where there are no charges? Or, at the other end of the spectrum, does it mean that there is no time limit restriction at all for access to such records? THE DIRECTOR’S POSITION [ 11 ] The Director submits that this application satisfies s.119(1)(

s) as there is both a “valid interest” and it is “desirable in the interest of the proper administration of justice.” I agree. The valid interest is in order to name and proceed against the proper party in the Supreme Court claim. It is in the interest of the proper administration of justice that the aims of the legislation be fully adjudicated upon by the Supreme Court in the action already commenced. [ 12 ] The more significant issue for the Director is the proper

interpretation of s. 119(2) in light of the difficulty already referred to. The Director submits that recourse must be had to, first, prior decisions and, second, to statutory

interpretation. [ 13 ] The Director relies upon three decisions of this Court: R . v. Louwe and Milne , Victoria Registry 4669-3 (August 10, 2010), In the Matter of Disclosure of Certain Records , Fort St. John Registry 2297-1 (July 21, 2011) and In the Matter of Disclosure of Certain Records , Victoria Registry 155464-1 (October 19, 2011). Only the last decision was one where no charges had been laid. For each of these cases there are no considered Reasons for Judgment. They are, without question, nisi prius judgments. That is perfectly

understandable in the context of a busy remand court where these applications would have been brought. Counsel for the Director fairlyconceded that a full review of the issue may be warranted in the particular circumstances of these judgments and in light of the “noveltyof the application.” [14] The position of the Director on the proper statutory

interpretation of s. 119 revolves around three main points: the intention ofParliament as expressed in the YCJA; second, the plain meaning of s. 119 and, third, avoiding an

interpretation which creates an illogicalresult. In short, the Director’s position is that s. 119 properly interpreted permits access to the requested information. [15] The Director submits that the intention of Parliament was to balance the interests of the young person with the interests ofsociety. Accordingly, the YCJA emphasizes rehabilitation of young offenders but, at the same time, endeavours to create a sense ofaccountability and responsibility in the young person. That sense of responsibility would be frustrated if the young person were to avoidthe impact of civil forfeiture laws for criminal behaviour. [16] I agree with the submission of the Director. S. 3(1)(b)(

i) places rehabilitation as a primary goal of the YCJA. S. 3(1)(b)(iii) ofthe YCJA states that the criminal justice system for young persons must, inter alia, emphasize “enhanced procedural protection. . .including their right to privacy. . .”. These are but two examples of an overall scheme of the YCJA to treat young persons differently fromadults and, in particular, to permit young persons to move into adulthood without the stigma of their past behaviour: Re: F.N. 2000 SCC35 , [2000] 1 S.C.R. 880 at paragraphs 14-16; R. v. D.B. 2008 SCC 25 , [2008] S.C.J.

No. 25 at paragraph 84. [17] At the same time, the YCJA strives to protect the broader interests of society. S. 3(1) also refers to the importance of theaccountability of the young person, the respect for societal values and encouragement of the repair of harm done to the victim and thecommunity. The exceptions to restricted access as contained in s. 119 are examples of Parliament attempting to balance the sometimescompeting interests involved. Of that balance, as it relates to records, it was stated by the Ontario Court of Appeal in S.L. v. N.B. (ON CA), [2005] O.J.

No. 1411 (at para. 42): Generally speaking, access to records is limited to circumstances where the efficient operation of the young offender system or someother valid public interest is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come intoconflict with the law. Different records are also treated differently.

Some particularly sensitive records such as medical reports areavailable only in limited circumstances to specifically identified persons or groups. [18] Accordingly, in determining the access to the records of this young person, the Court must bear in mind the intention ofParliament as to both the deleterious aspects of access as well as the public interest in having the Supreme Court decide the issues underthe Civil Forfeiture Act. A balance must be struck. [19] On the facts of the case at bar and to achieve the intention of Parliament, the balance favours granting access to the informationin question.

As no findings of fact have been made (as the other subsections of s. 119(2) presuppose) the stigma attached to these recordsis greatly reduced. At the same time, the public interest in depriving individuals of property gained unlawfully and forfeiting thatproperty for the purposes set out in the Civil Forfeiture Act are compelling. [20] The second point relied on by the Director is that the plain meaning of s. 119 is to create access to records during certain periodsof time. As the

section states no ‘end date’ after which access is denied then, logically, access is still permitted. This submission,appealing on its face, is not without its problems. [21] First, it is clear that the intention of s. 119 is to create narrow windows of opportunity for access to a young person’s records. After that period, for all intents and purposes, the window is closed, there is no longer access to the records and the young person moveson with their life. The Director’s position comes close to allowing indefinite access to records for the uncharged young person.

To statethe obvious, there is still some stigma attached to the information contained in records of an uncharged young person. The facts in thecase at bar are a clear example of such stigma. Therefore, an access period with no end date could defeat the legislative intention of s.119. [22] The Director recognized the concern created by their position and submitted that, “The Director would be applying for theserecords at its earliest opportunity (~6-7 months). Further, the CFA prescribes a limitation date of ten years from the date the unlawfulactivity occurred: s. 35”.

With the greatest of respect, this is an inadequate response to the preservation of the legislative intention. [23] Having reviewed the exact wording of s. 119, I am satisfied that the legislative intention need not be so defeated. S. 119(1)states that records such as the ones in the case at bar (kept under s. 115 and 116 of the YCJA) “may” be accessed under the section. Theuse of the word ‘may’ creates a discretion in the Court as to the granting of the request for access.

Without limiting what would beconsidered in the proper exercise of that discretion, it would seem obvious that the legislative intention of permitting a young person tomove on from their past behaviour would be an important factor. On the facts of a particular case, the exercise of discretion mightinvolve a decision that an application for access has not been advanced with alacrity and access may be denied. [24] I am fortified in concluding that there is such a discretion on the facts of the case at bar as a result of the Director’s reliance ons. 119(1)(s).

That subsection specifies that the judge must be ‘satisfied’ that access is ‘desirable’ in the interest of the properadministration of justice. It follows that to be so satisfied, the judge must view access to the records as consistent with the legislativeintention and thereby the proper administration of justice. [25] It also bears noting that the access to the record may also be circumscribed. S. 119(1)(

s) permits access to a record to those whohave a valid interest and only to the extent of that valid interest as directed by the judge. The demarcation of the extent of the interest canoperate to preserve the legislative intent. [26] In

summary on this point, I accept that the proper

interpretation of s. 119(2) permits access to records even though the

section issilent as to an end date. I do not accept, however, that there is no end date for access to records involving uncharged conduct. Such

records may be accessed only during a time frame which remains at the discretion of the Court. [ 27 ] On the facts of the case at bar, I am satisfied that this application has been brought on quickly after the events in question. I am further satisfied that the extent of the valid interest is in the name of the young person and any information which may assist in the locating that person.

In concluding that I am so satisfied, I am relying on the representations of the Director that on receipt of the information as to the identity of the young person, that identity will still be protected by substituting the initials of the young person in place of ‘John Doe’ in the style of cause and seeking a publication ban before the Supreme Court of the identity of the young person. [ 28 ] The Director also submits that restricting access by denying this application would create an illogical result.

On the one hand the records would be kept pursuant to the YCJA yet there would be no access to them even though there was a public interest in doing so. An analogous problem was dealt with in R. v. Ryane [2010] B.C.J. No. 2294 . In that case the issue was whether the police could access records (ie. a photograph) when there was no specific permission granted by the legislation. The illogical situation was created, on one

interpretation of the YCJA , that the police were entitled to keep the records but would violate the YCJA to access them. Wood J. held that a proper construction of the YCJA permitted the police to access the photograph in question. [ 29 ] I agree that an illogical

interpretation is to be avoided. In the case at bar, that illogical

interpretation is avoided by permitting access to the records at a time and in a manner which preserves the legislative intention. CONCLUSION [ 30 ] Although s. 119 is silent as to the period of time of access to the records relating to a young person where that young person is not charged with an offence, I am satisfied that a reasonable

interpretation of that

section permits such access. The Director’s application is allowed on the terms and in the form as set out as an Appendix to these reasons. _______________________ A.F. Brooks Provincial Court Judge