R. v. T.P., 2022 ONCJ 627

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 conse​quences 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. T.P., 2022 ONCJ 627 DATE: 2022 06 18 COURT FILE No.: Brampton 3111 998 20 492Y BETWEEN: HER MAJESTY THE QUEEN — AND — T.P. (A “young person” under the Youth Criminal Justice Act ) Before Justice G.P. Renwick Heard on 13 and 15 June 2022 Reasons for Judgment released on 18 June 2022

C. Vanden Broek................................................................................. counsel for the Crown S. Agbakwa................................................................... counsel for the Young Person T.P. RULING #2 ON THE GAROFOLI [1] APPLICATION RENWICK J.: INTRODUCTION [ 1 ] The young person is charged with three counts arising from an armed bank robbery that took place on 24 December 2019. [ 2 ] The prosecutor seeks to rely upon deoxyribonucleic acid (“DNA”) evidence to link the young person to the crime.

The young person seeks to exclude the DNA evidence by asking the court to quash the DNA warrant by which the investigators took a blood sample from the young person for DNA comparison with items associated with the robbery or as a remedy for alleged Charter violations. [ 3 ] As part of the Application, the young person initially applied for leave to cross-examine the affiant of the Information to Obtain (“ITO”) the DNA warrant. On 14 June 2022, I ruled that the test for leave had not been met and denied that part of the Application.

These reasons relate to the arguments respecting the quashing of the DNA warrant, or, alternatively, the exclusion of DNA evidence as a remedy for claimed breaches under ss. 7, 8, and 10(

a) of the Charter . GENERAL PRINCIPLES [ 4 ]

Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 5 ] The Supreme Court has confirmed that s. 7 permits legislation to limit life, liberty, and security of the person, “provided it does so in a way that is not contrary to the principles of fundamental justice.” [2]

Section 7 is implicated in this case by the compelled participation of the young person in his investigation and the intrusion upon his bodily integrity by the taking of a blood sample. [ 6 ]

Section 8 of the Charter protects individuals from unreasonable searches and seizures. In the context of DNA sampling for evidential purposes, absent a warrant, the compelled taking of someone’s DNA is an assault and an unreasonable seizure. [ 7 ] Garofoli hearings involve the determination of the admissibility of evidence.

Constitutional considerations involving disclosure, the right to cross-examination, and full answer and defence are contextualized and balanced with other considerations. [3] [ 8 ] The reviewing court must consider whether the entirety of the affidavit in support of the requested search contains reliable information upon which the authorizing justice could have granted the order; i.e ., was there “some evidence that might reasonably be believed on the basis of which the authorization could have issued.” [4] For this reason, a microscopic parsing of the ITO may be inappropriate.

The ITO must include full, fair, and frank disclosure, but “[i]t need not include every minute detail of the police investigation over a number of months or even of years.” [5] [ 9 ] Whereas the authorizing justice is asked to consider the probability of finding evidence in a particular place, the review conducted by the trial judge is a possibility analysis – could the warrant have issued on the basis of what was submitted to the issuing justice.

The test for review is exacting and permits no variance: While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer. [6] [emphasis added] [ 10 ] A Garofoli review will take into account all of the evidence adduced during the application, including any viva voce evidence adduced, the result of any cross-examination of the affiant or sub-affiants, any exhibits, the ITO (with any excisions or amplifications), and the submissions of the parties.

ANALYSIS [ 11 ] The young person has not advanced a facial attack upon the DNA warrant (that there were insufficient grounds for the warrant to issue).

It also appears that the young person no longer advances a sub-facial attack upon the issuance of the warrant (deliberate falsehoods or omissions require excision of grounds such that the warrant is no longer supportable - i.e., there are no longer sufficient grounds to establish that the warrant could have lawfully issued). [ 12 ] Rather, the young person advanced a two-pronged attack upon the DNA evidence sought to be introduced at his trial: the pre- authorization process was flawed to the extent that it requires residual remediation (quashing of the warrant) and the execution of the DNA warrant was not in compliance with the law or health guidelines. [ 13 ] In response to the first argument, the prosecutor raised a threshold issue: given that the young person was 18 years old when the

police obtained the DNA warrant, the additional protections afforded by s. 487.07(4) of the Criminal Code do not apply to the youngperson. The prosecution relied upon R. v. D.A.Z., (SCC), [1992] 2 S.C.R. 1025 in support of its position. [14] D.A.Z. considered the applicability of the former protections provided to those charged under the predecessor legislation foryoung offenders when giving statements to police after reaching adulthood.

In that context, the court held that the additional statutoryprotections were unnecessary for adults charged as young offenders, given the common law requirements of voluntariness for theadmissibility of statements. [15] While helpful, I do not find that the decision is binding on me in this context given the difference in legislation, the inclusion ofadditional rights for young persons within the Criminal Code, the mandatory nature of compliance with a DNA warrant, and the specificreference to the Youth Criminal Justice Act (“YCJA”) definition of a “young person” within s. 487.04 of the Code. [16] To be clear, the declaration of principles in the YCJA go further than the aim of the Young Offenders Act (in place at the timeD.A.Z. was considered) in protecting the rights of young persons.

A more inclusive definition of “young person” is consonant with aliberal

interpretation of the Act, which is mandated by s. 3(2) of the YCJA. [17] Moreover, the predecessor legislation only required the inclusion of adults within the definition of “young person” “where thecontext requires.” This was made plain in D.A.Z.

Conversely, the YCJA provides that the definition of “young person” applies “if thecontext requires.” In my view, Parliament’s use of the conjunction “if” demonstrates a state of possibility which is more open-ended thanthe conjunction “where,” which requires a defined state to occur. [18] Additionally, I cannot accept that the reasoning of the Supreme Court in D.A.Z. applies where voluntariness is not the issue, butprocedural protections for mandatory compliance with a court order are implicated. [19] Lastly, the statutory requirement for additional protections respecting DNA warrants involving young persons protects theidentity of those charged under the YCJA. [20] If the prosecutor’s

interpretations of s. 487.07(4) and the definition of “young person” within s. 2(1) of the YCJA are correct,though the public has no right to know the young person’s name, because he is charged under the YCJA, the public nonetheless has theunfettered right to access the ITO of the DNA warrant held by the Clerk of the court, including the right to publish the contents of theITO, where the application has not been sealed by the issuing justice (as in this case).[7] In this situation it is unlikely that any of theprotections of the YCJA could attach to the DNA warrant: see ss. 110 (identification of a young person), 114 (youth court records), and118 (access to records).

If the prosecutor is correct, it seems entirely incongruent, to say the least, if the procedural protections providedby s. 487.07(4) of the Code can be denied to an 18 year old who is charged under the YCJA during the execution of the DNA warrantwhile the other protections of the YCJA would still prevail. [21] I would also note the paradox that by failing to reference that the young person was charged under the YCJA in the ITO, thepolice risked the publication of the young person’s identity (contrary to the aim of the YCJA), if the issuing justice had chosen to publishhis reasons for granting the DNA warrant.

There is absolutely nothing to suggest that the issuing justice was aware that the target of theDNA warrant was a young person. Had the issuing justice turned his mind to this, one wonders why s. 487.07(4) was not mentioned inthe judge’s endorsement or the terms of the warrant. [22] One of the key animating features of the YCJA, the protection of the identity of young persons, is put at risk if the definition of“young person” is inapplicable where police seek DNA warrants.

The situation created by the affiant left the one person in the dark whoshould have known about the young person’s status: the issuing justice. [23] There is perhaps a normative reason to deny the prosecution the benefit of the affiant’s failure to recognize the application of s. 487.07(4) in the ITO. The police became aware of the young person as a suspect within days of his 17th birthday, on 19 June 2020. Therewas a “hit” for the young person on the national databank for DNA found on items associated with the robbery.

For some unknown reason, the police waited 22 months, until five weeks prior to trial (exactly 8 weeks prior to the young person’s 19th birthday), to seek awarrant for his DNA. In the circumstances, it seems inappropriate to deny the young person the procedural protections of s. 487.07(4) ofthe Code without any apparent justification for the delay caused solely by inaction on the part of the police. [24] Accordingly, respecting the threshold argument, I find that the definition of “young person” within s. 2(1) of the YCJA applies tothe DNA warrant granted on 24 April 2022. The Paryniuk Argument [25] In R. v.

Paryniuk, Justice Watt, on behalf of a unanimous court, held that a trial judge has a residual discretion to set aside aproperly issued warrant where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization processleading to the issuance of the warrant: …previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiarypredicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith,deliberate deception, fraudulent misrepresentation or the like. [8] [citations omitted] [26] In this case, the young person has specifically conceded that there is no evidence to suggest that the affiant (or any other policeofficer) has acted maliciously, deliberately, fraudulently, or with intentional disregard for the young person’s rights.

Instead, it is arguedthat the affiant’s failure to note within the ITO that the s. 487.07(4) rights applied was the result of “gross negligence” that underminedthe pre-authorization process. [27] Unfortunately for the young person, I agree with his concession. The factual predicate of “deliberate non-disclosure, bad faith,

deliberate deception, fraudulent misrepresentation or the like” is entirely absent here. [ 28 ] In my view, while it is unfortunate that the affiant failed to alert the issuing justice of the applicability of s. 487.07(4) and this resulted in a warrant which omitted terms that would support the young person’s statutory rights, I find that this failure was inadvertent.

At the time that the police applied for the DNA warrant, the young person had already turned 18 years old and it appears that the affiant, who is also the officer in charge of the investigation, and the same officer who arrested the young person, simply forgot that he had been charged under the YCJA . [ 29 ] On this basis, I am not satisfied that the DNA warrant ought to be quashed for a subversion of the pre-authorization process. Arguments Under Sections 7, 8, and 10(

a) of the Charter [ 30 ] The young person’s s. 10(

a) Charter argument was never articulated in oral or written submissions. I surmise that it relates to the lack of information provided to the young person during the execution of the DNA warrant as required by s. 487.07(4) of the Criminal Code . [ 31 ] This

section of the Code affords young persons additional procedural protections during the execution of DNA warrants: (

a) the right to a reasonable opportunity to consult with, and (

b) the right to have the warrant executed in the presence of counsel and a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person: s. 487.07(4). [ 32 ]

Section 487.07(4) has an informational component (the right to know that certain people can accompany the young person during the execution of the DNA warrant) and an implementational component (the right to choose whether or not to have one or more adults present with the young person during the execution of the DNA warrant). [ 33 ] These provisions align with some of the principles found within s. 3(1) of the YCJA , specifically: … (

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

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity , (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected … … (

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

i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, … (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [ emphasis added] [ 34 ] In the absence of any jurisprudence to support his argument I cannot accept the s. 10(

a) Charter claim. The young person was fully advised why the police had attended the youth detention centre to see him. He was made aware of both the DNA sampling procedure that he was to undergo and the right to consult with counsel. In fact, the DNA warrant execution was halted to permit the young person to speak to his lawyer for several minutes before his DNA was sampled (see the DNA Warrant Execution video, exhibit D on the Application). In the circumstances, I am not satisfied that it is established on a balance of probabilities that the young person’s s. 10(

a) right was breached. [ 35 ] For several reasons, however, I am satisfied on a balance of probabilities that the young person’s s. 7 and s. 8 Charter rights were violated by both the pre-authorization process as well as the execution of the DNA warrant. [ 36 ] By failing to alert the issuing justice to the requirements of s. 487.07(4) of the Code , the affiant unwittingly denied the court the opportunity to consider the entire circumstantial matrix of the investigation and whether it remained in the best interests of the administration of justice to order DNA sampling from a young person.

I find as a fact that this unintentional omission put the young person’s identity at risk, it camouflaged relevant information that could have played a

part in the issuing justice’s consideration of the ITO, and it undermined the pre-authorization process. This singular failure was certainly a s. 8 Charter violation, and may well have implicated the young person’s s. 7 interests as well. [ 37 ] The prosecutor concedes that the terms of the DNA warrant required all “necessary health precautions” [9] were to be taken in light of the invasive nature of the specific DNA sampling procedure (blood sampling rather than hair plucking or the swabbing of skin cells). In the

preamble to the terms, the warrant reads:

The taking of blood samples will be done by first asking [T.P.] born [month date, year] to lay his arm on a table and provide free access to his hand and fingers. One of his fingers will then be cleansed with alcohol and then the surface of one of his fingertips will be pricked with a small sharp sterile lancet. [ 38 ] The evidence is clear.

The forensic identification officer who sampled the young person’s blood for DNA analysis followed every required protocol and safety measure except one: he forgot to sterilize the young person’s finger with alcohol before pricking the finger for blood. [ 39 ] The officer said nothing at the time. After using a Kleenex to wipe the young person’s bleeding finger, the officer then used an alcohol swab to clean the finger before placing a bandage on the wound.

The young person was not told of the mistake; nor was the prosecutor; [10] nor was the forensic analyst who would develop the young person’s DNA from the blood sample. [11] The mistake of the forensic identification officer remained hidden until he revealed his error during his examination in chief. [12] [ 40 ] I accept the testimony of both the forensic identification officer and the forensic scientist that the failure to cleanse the young person’s finger before pricking it for blood risked putting germs from the surface of the finger into the young person’s body. [ 41 ] However minimal the actual risk that existed to the young person’s health or the apparently inconsequential result, I find that the officer’s failure to follow one of the fundamental terms of the execution of the DNA warrant turned a judicially authorized search into an assault. [ 42 ] As conceded by the prosecutor, this was a breach of the young person’s s. 8 Charter right.

I am also satisfied on a balance of probabilities that this aspect of the execution of the DNA warrant breached the young person’s s. 7 rights. This occurred in a congregate living facility (a youth detention centre) during a global health pandemic.

The error was foolish, inexcusable, and it unnecessarily risked the health of the young person, contrary to the express terms of the warrant authorized by the issuing justice. [ 43 ] The failure of the police to remember their surroundings (a youth detention centre), and the fact that the young person had been charged under the YCJA led to another error during the execution of the DNA warrant: the protections of s. 487.07(4) were not offered to the young person. Though the warrant did not require compliance with s. 487.07(4) of the Code , the common law did.

Had the young person been given the choice, there may have been someone present who could have prevented the officer’s mistake which also tainted the execution of the DNA warrant. This compounds the s. 7 and s. 8 violations. Section 24(2) of the Charter [ 44 ] The parties agree that the three-prong test from R . v. Grant [13] governs the exclusion of evidence under s. 24(2) of the Charter . [ 45 ] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute.

This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative consideration of the long-term effect tainted evidence may have upon public confidence in the justice system. [ 46 ] To perform the balancing exercise required by s. 24(2) of the Charter , I must consider: i. The seriousness of the Charter -infringing state conduct; ii. The impact of the breach(es) on the Charter -protected interests of the Applicant; and iii.

Society’s interest in the adjudication of the case on its merits. [ 47 ] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter -infringing conduct is serious and the impact upon Charter -protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence.

That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” [14] Seriousness of the Charter-Infringing State Conduct [ 48 ] This case involves a violation of two distinct Charter rights that bookend the DNA warrant process involving the young person. [ 49 ] The evidence established that the police failed in a fundamental way to inform the issuing justice and the young person about his right to have counsel, a parent, or another adult present during the DNA sampling. [ 50 ] It should be obvious that I have found that the breaches were numerous, repeated, and serious.

From inception to completion, the DNA warrant process and execution was flawed. These mistakes are not trivial. The mistakes of the police have co-opted the judiciary, the clerk of the court, and the prosecution while imperilling the pre-authorization process, trust in law enforcement, and the health of a young man. [ 51 ] Though I have not concluded that the violation of the s. 487.07(4) rights was deliberate, it was significant. I find that the seriousness of the ss. 7 and 8 Charter breaches pull strongly in favour of excluding the DNA evidence.

The Impact of the Breaches Upon the Defendant’s Charter-Protected Interests [ 52 ] In this case, the Charter violations were avoidable. Inadvertence, inattention, or carelessness explain why they occurred. Regardless, the effect upon the young person’s interests is significant. The police sought a warrant without alerting the issuing justice of important procedural rights owed to the young person. In an ex parte application, where no one could advocate for the young person, there were significant consequences. A quasi-medical procedure took place during a global health crisis in a sub-optimal way.

The young person is not presumed to know what his rights are. He was in a detention centre. It was up to the police to comply with s. 487.07(4) whether or not the terms of the DNA warrant required it. It was up to the police to inform the young person of the choice he could make

to have others present as a comfort during an investigative procedure that compels him to participate in his own investigation and prosecution. [ 53 ] The effect of the several Charter breaches upon the young person, throughout the pre-authorization and warrant execution phases was significant and potentially lasting.

Although I have not heard from the young person, I can only imagine the concerns that would arise when one considers the physical environment, the current health crisis, and the thoughtless manner in which the DNA sampling officer’s mistake was made known. [ 54 ] Had the breaches been less serious, less numerous, or less thoughtless, I may have concluded that the effect upon the young person was less significant.

By way of example, if an officer executes a warranted, surreptitious entry by picking a lock rather than obtaining a key from the landlord, despite the contravention of a specific term of the general warrant, the impact of the Charter violation is less significant because the invasion of privacy is unchanged, regardless of how the warrant was executed. [ 55 ] In this case, a young person had his bodily integrity trespassed by court order. During the procedure, he was alone with three police officers. That is not a trivial search and seizure.

It is toward the far end on a continuum of state ordered invasions of privacy. The terms of the order and the manner of execution directly impact the target of the warrant because bodily integrity and security of the person are involved.

The effect of the loss of procedural protections designed to reduce the deleterious consequences of the impact upon a young person and a breach of the terms of the order justifying the intrusion of bodily integrity is incalculable, but most certainly it is significant. [ 56 ] The effect of the loss of the procedural rights under s. 487.07(4) of the Code were only mitigated by the provision of the young person’s s. 10(

b) rights and the respectful manner with which the police treated the young person during the DNA warrant execution. Regardless, I find that this factor also strongly pulls toward the exclusion of the DNA evidence. Society’s Interest in the Adjudication of the Case on its Merits [ 57 ] In R. v. McGuffie , the Ontario Court of Appeal court spoke about the tension between the three considerations: The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant .

The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case. In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.

Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [15] [ 58 ] The DNA results are reliable and necessary to assist the prosecutor to prove that the young person was one of the three perpetrators of the alleged armed bank robbery. This militates in favour of admitting the DNA results. [ 59 ] The prosecutor submits that the breaches in this case are minor and technical. I disagree. I have assessed these violations as serious and numerous.

While they were not intended, each was foreseeable and preventable. The effects of each breach compounded the failures of the state. [ 60 ] The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. To be informed of all of one’s rights prior to the execution of a DNA warrant is fundamental and at the core of protecting the autonomy, liberty, and security of our youngest and most vulnerable residents from the authority of the state. In this case, the police failures had an effect during and subsequent to the pre-authorization process.

It is not an overstatement to imagine the loss of public confidence that could have resulted if the issuing justice had published his reasons for granting the DNA warrant and consequently breached s. 110 of the YCJA . [ 61 ] There is no evidence that the failures of the affiant and the forensic identification officer are long-standing, widespread, or systemic within the Peel Regional Police.

Nonetheless, I tend to the view that mere disapprobation of their behaviour by the court is incommensurate with the misbehaviour occasioned. [ 62 ] In the end, this is not a case where the third Grant factor predominates over the strong opposing forces of the other two factors.

I find that the long-term effect of admitting the DNA evidence in the circumstances of this case would bring the administration of justice into disrepute. [ 63 ] I have taken into account that this decision may be thought to decimate the prosecution of the young person for these extremely serious offences. [ 64 ] Two observations can be made. The benefits of a healthy justice system are not measured by prosecutorial success. Rather, the protection of the rights of our most vulnerable members inures to everyone’s benefit by upholding the rule of law.

Also, the DNA evidence in this case was unlikely to be dispositive. Unlike the case of a sexual assault where the assailant’s DNA is found under the fingernails of the complainant, in this case, the DNA evidence was only likely to have grafted culpable probability onto a possibility. Were the evidence to be excluded by this decision admitted in the young person’s trial, it is far from clear that the outcome would be any different. CONCLUSION [ 65 ] The young person’s Charter protected interests were significantly violated by the actions of two different police officers. Neither officer was a novice.

The failures were simple and likely the result of inadvertence, but their effect was significant in scope and impact. The only appropriate remedy is the exclusion of the analysis of the DNA taken from the young person by a flawed pre-authorization and

execution process. [ 66 ] The Application succeeds. Released: 18 June 2022 Justice G. Paul Renwick