R. v. Rafin, 2022 ONCJ 560

B E T W E E N : HIS MAJESTY THE KING — AND — AHMED RAFIN 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. CITATION: R. v. Rafin, 2022 ONCJ 560 DATE: 2022·12·02 ONTARIO COURT OF JUSTICE

Before Justice Michael Waby Application to Access Youth Court Records Pursuant to s. 118, 119 and 123 of the Youth Criminal Justice Act Heard on November 8 , 2022 Reasons released on December 2, 2022 G. Meyers / M. Sabat ................................................................................................... for the Crown A. Weisberg / M. Sengupta- Murray .................................................... for the Accused, Ahmed Rafin Waby, J.: Introduction [ 1 ] The Crown has brought an Application for directions in respect of the disclosure and use of police records. This Application is before me as a Youth Court judge and is brought pursuant to

Part 6 of the Youth Criminal Justice Act , 2002 ( YCJA ). A preliminary hearing is scheduled to commence on January 23, 2023 and I am the judge scheduled to preside at the Preliminary Hearing. It is my understanding that counsel are content with my presiding over this Application in my capacity as a Youth Court Judge. [ 2 ] Ahmed Rafin stands charged with committing second degree murder on November 16, 2021. The deceased, Maahir Dosani, was a 15-year old student at Victoria Park Collegiate Institute (VPCI).

Summary of Allegations [ 3 ] Sometime in autumn 2021, Mr. Dosani had attended the gender-neutral washroom of his school with two female classmates, apparently to “check it out.” Other students gossiped about seeing the trio in the washroom together and rumours circulated in which it was said that Mr. Dosani had flirted with one of the females or that they were in a relationship. M.A., the brother of the subject of the rumours and also a student at VPCI, allegedly assaulted Mr. Dosani on October 28, 2021 in response to these rumours. The police became involved with M.A. who is a young person.

No charges were laid. [ 4 ] Mr. Dosani was good friends with Mr. Rafin. At the time of the alleged events, the latter was a university student. Mr. Dosani allegedly enlisted him to help confront M.A. outside his school on November 16. 2021. A fight broke out among 20 to 30 students present. Mr. Rafin was allegedly holding a knife and it is alleged by the Crown that he fatally stabbed his friend in the melee that ensued.

M.A. was not present throughout, having been picked up by his father immediately after the end of school and before the fight broke out. [ 5 ] The police report regarding the alleged incident on October 28, 2021, as well certain references to it by witnesses and in police reports created as part of the homicide investigation, are disclosure provided by the Crown to defence counsel. These have been redacted pending a ruling by this court under the YCJA . [ 6 ] The materials in question can be grouped into two categories.

In the first category is the police occurrence report relating to the October 28, 2021 incident involving M.A. which details the information police received, the actions they took, and the outcome of the matter. A copy of this material has been provided by the Crown to the Court. In the second category are certain witness statements and reports generated in the course of the homicide investigation which reference the same information contained in the occurrence report.

Position of the Parties [ 7 ] The parties agree that it is open to me to review the materials provided to the Court by the Crown and I have done so. I have also heard submission from counsel. A case conference was also conducted by me with the parties via teleconference on November 18, 2022 and a

summary of that case conference has been prepared and will be sealed and attached to the Information. [ 8 ] It is anticipated that M.A. will be called to give evidence at the Preliminary Hearing. M.A. is a witness whose evidence is likely to be of significant relevance to both the Crown and the defence.

It is also common ground as between the parties that a number of anticipated witnesses at the Preliminary Hearing are also well aware of the alleged incident that occurred on October 28, 2021. [ 9 ] Defence counsel take the position that, if the materials amount to records pursuant to the YCJA , they do not require the constituent details of any particular outcome but do require disclosure of the nature of the outcome of any police involvement with M.A.

Furthermore, it is the position of defence counsel that the needs of full answer and defence require them to receive disclosure on specifics around the nature and extent of police involvement, including whether M.A. was arrested or not.

The Issues [ 10 ] The Crown asks this Court to make the following determinations in the context of this application: a. Whether the disclosure items at issue amount to “records” under the Act ; b. Whether, having regard to the materials provided by the Crown, the disposition of the matter involving M.A. amounted to Extra Judicial Measures; c. Whether access to these items is authorized by the YCJA ; d. The extent to which the Crown can provide disclosure of materials to defence counsel pursuant to their obligations under R. v. Stinchcombe; e.

The extent to which witnesses at the Preliminary Hearing may be asked questions by Crown or defence relating to the incident that allegedly occurred on October 28, 2021. Review of Materials Provided by the Crown [ 11 ] I have reviewed the materials provided to me by the Crown. I find that the materials provided to me clearly meet the definition of a record pursuant to

section 2 of the YCJA . I further find that the contents of materials disclose what amount to extrajudicial measures pursuant to

section 2 of the YCJA . The Law [ 12 ] In accordance with the provisions of

section 118 of the YCJA , disclosure of documents covered by the YCJA is presumptively inadmissible except as authorized by the YCJA . [ 13 ]

Section 2 of the YCJA defines “record” broadly and as follows, “includes any thing containing information, regardless of its physical form or characteristics, including microform, sounds, 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 .” [ 14 ]

Section 2 of the YCJA defines extrajudicial measures (EJM) as, “measures other than judicial proceedings to deal with young people alleged to have committed an offence and includes extra-judicial sanctions.” [ 15 ] The YCJA requires police officers to consider the use of extrajudicial measures before deciding to charge a young person. The provisions regarding extra judicial measures are set out in sections 4 through 9 of the YCJA .

Section 6(1) of the YCJA reads as follows: o A police officer shall, before starting judicial proceedings or taking any other measures under this Act against a young person alleged to have committed an offence, consider whether it would be sufficient, having regard to the principles set out in

section 4, to take no further action, warn the young person, administer a caution, if a program has been established under

section 7, or, with the consent of the young person, refer the young person to a program or agency in the community that may assist the young person not to commit offences. [ 16 ] Where EJM were used, section 119(4) of the YCJA significantly restricts access to those records and limits their access as follows: • Access to a record kept under

section 115 or 116 in respect of extrajudicial measures, other than extrajudicial sanctions, used in respect of a young person shall be given only to the following persons for the following purposes: (

a) a peace officer or the Attorney General, in order to make a decision whether to again use extrajudicial measures in respect of the young person; (

b) a person participating in a conference, in order to decide on the appropriate extrajudicial measure; (

c) a peace officer, the Attorney General or a person participating in a conference, if access is required for the administration of the case to which the record relates; and (

d) a peace officer for the purpose of investigating an offence. [ 17 ] In the Legislative Summaries of Bill C-3 prepared by K. Douglas and D. Goetz, Law and Government division, February 21, 2000, at paragraph 18 the authors state as follows:

Part 1 of Bill C-3 deals with “extrajudicial measures,” the proposed new term for what are currently known as "alternative measures" under the YOA, whereby young persons can be held accountable for their offending behaviour without proceeding with a formal charge through the courts. Out-of-court responses, such as police warnings, cautioning, referral to community programs, apologies to victims, acknowledgement and reparation of damage, and community service work, are seen as providing more meaningful consequences for

much youth crime, as well as being faster and less costly than interventions through the formal court system. Moreover, providing forsuch non-judicial alternatives is in keeping with Canada's obligations under the United Nations Convention on the Rights of the Child(see article 40(3)(

b) of the Convention). Recent studies have shown that, in comparison with countries such as the United States, theUnited Kingdom, Australia, and New Zealand, Canada has been under-utilizing such measures and has thus tended to divert fewer youthcrime cases from the formal court system. [18] Extrajudicial measures are a means to hold young persons accountable for their behaviour while seeking to keep themapart from the mainstream youth criminal justice system. The use by police of one of these measures as an alternative to the prosecutorialprocess means that no criminal charges will be laid.

Analysis [19] In respect of the first three issues on which the Crown seeks direction in this Application, I make the following findings. Ihave reviewed the materials provided to me and it is abundantly clear that having found that they amount to records relating to mattersthat were disposed of by EJM, the provisions of section 119(4) of the YCJA do not allow this Court to grant access to them under

Part 6of the YCJA. [20] In light of the above, the Crown is prohibited under the YCJA from providing any material by way of disclosure todefence counsel that includes any reference in any materials to any EJM outcome in connection with the alleged incident from October28, 2021. [21] I now turn to issues four and five on which the Crown seeks direction. [22] Mindful of the relevant provisions of the YCJA, I read nothing in the Act that would prevent the Crown from providingdisclosure to defence counsel that includes information or references by potential witnesses to the alleged fight between M.A. and thedeceased on October 28, 2021 as well as the alleged reason for it.

It is important to note that this is qualitatively different from disclosingmaterials that disclose the nature of any police involvement and any EJM determination made by the police involving M.A. [23] The Act rightly contemplates the risk of the stigmatization of young persons who have come in to contact with thecriminal justice system in some way, shape or form. Furthermore it legitimately seeks to mitigate the consequences of any suchstigmatization. As articulated by Molloy J in R v Sheik-Qasim, (ON SC), [2007] O.J. No. 4799 “the underlyingprinciples that must inform any

interpretation of the YCJA are set out in s. 3, which is entitled "Declaration of Principle". Section 3(1)states that the Act must be liberally construed to ensure that young persons are dealt with in accordance with these principles. Ofparticular relevance for present purposes is s. 3(1)(b)(iii) which provides that the youth criminal justice system must be separate fromthat 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". Section 3(1)(d)(

i) states that "special considerations apply in respect of proceedingsagainst young persons", including in particular that "young persons have special guarantees of their rights and freedoms". [24] The alleged fight between M.A. and the deceased is highly relevant to issues at the Preliminary Hearing, including anyanimus as between those individuals. It is also common ground as between the Crown and defence that the alleged fight and its causewere widely known within the school and by many of the anticipated witnesses at the preliminary enquiry.

The fact that knowledge ofthe fight is widely known within the school community is not an insignificant factor. In my view this further significantly diminishes therisk of stigmatization of M.A. that could theoretically arise from any appropriately crafted questions being asked of him or others inconnection with this incident. I am of the view that this rationale would similarly apply to the disclosure of appropriately edited material.Such material would also clearly assist Mr.

Rafin in his ability to make full answer and defence. [25] I find little difficulty in concluding that if a young person was arrested, the materials that related to their arrest would alsoamount to a record under

section 2 YCJA and would form part of the continuum of documents that related to their engagement with thecriminal justice system. If a young person received EJM then police generated materials related to that would, in my view, form part ofthe materials related to the EJM.

As such, if M.A. was arrested and was then dealt with by way of EJM, I find that that disclosure of anyrelated police materials would be similarly governed by the provisions of s 119(4) and are presumptively non-disclosable. [26] In the event that I am in error, I would note that the sole purpose behind seeking to ask a witness whether they hadpreviously been arrested, is intended to seek to have inferences drawn that relate to character and credibility.

Whether such a question forsuch a purpose is permissible or not, findings of credibility are not within the purview of a judge presiding at a Preliminary Hearing. [27] I do find that at the Preliminary Hearing it would be permissible for both Crown or Defence to ask witnesses questionsthat relate to their knowledge of whether any fight occurred between M.A. and the deceased Mr.

Dosani and the reason for it and of anyanimus that existed between them. [28] It would not be permissible for counsel to ask questions of any witnesses that trespassed on the nature of any policeinvolvement and any EJM determination made by the police involving M.A. I am given to understand by the Crown that its witnessescould be prepared and managed within these parameters and as the Preliminary Hearing judge, I would similarly act to ensurecompliance. Conclusion [29] In light of my ruling, I am aware that any alleged breach of Mr.

Rafin’s ability to make full answer and defence would notbe capable of being addressed by a Charter remedy at a preliminary enquiry, R. v. Mills. Typically, such matters are the preserve of atrial judge.

[ 30 ] I do note that it would be available to the defence to bring a constitutional challenge to the provisions of s 119 (4) of the YCJA before a judge sitting as a youth court justice if they saw fit to do so. Counsel would necessarily have to comply with the relevant rules of criminal procedure in doing so.

M.A. could seek standing in any such application and M.A. would be entitled to legal counsel to represent M.A.’s interest at any such constitutional Application. [ 31 ] Consistent with the application for directions that I have received, I raise for consideration by the Crown and defence the benefits that may flow in this case from an Agreed Statement of Facts. I am of the view that an Agreed Statement of Facts, within appropriate parameters, would be capable of addressing many of the common needs and interests of the parties at the Preliminary Hearing without falling foul of the provisions of the YCJA .

It would seem to me that it would promote the interests of full answer and defence and appropriately address the reality that the parties acknowledge exists, whereby many of the potential witness in this case are already well aware of the alleged fight between M.A. and the deceased and its cause. [ 32 ] As indicated previously, there is nothing on my reading of the YCJA or CEA provisions that would preclude the parties drafting an Agreed Statement of Facts for judicial review and approval which acknowledged that M.A. had been involved in a fight, the genesis of that fight and that, as a result of this fight, there exists an evidential foundation to suggest that an animus existed as between M.A. and the deceased.

The Agreed Statement of Facts would not be able to include reference to any degree of police involvement, (investigation, arrest or EJM), however, it seems to me that this would enable Crown and Defence to address the central and legitimate issue behind this Application.

While it is entirely open to defence to bring a constitutional challenge to the relevant provisions of the YCJA if they choose to do so, a suitably crafted Agreed Statement of Facts may also obviate the need for such an Application in advance of the preliminary enquiry. [ 33 ] Whether an Agreed Statement of Facts is considered appropriate in the circum​stances of this case is ultimately a matter I leave for the Crown and defence to decide for themselves. [ 34 ] The above contains my ruling and directions in respect of this Application. [ 35 ] The Crown has in my view appropriately advised M.A. of this Application and I would direct the Crown to provide M.A. or M.A.’s counsel with a suitably redacted copy of this Ruling. [ 36 ] Finally, I order that the materials that I have received from the Crown be sealed and attached to the Information in addition to the

summary of the case conference conducted on November 18, 2022. Dated: December 2, 2022 Justice Michael Waby