R. v. M.(L.), 2011 ONCJ 465

COURT FILE No.: Y022586 DATE: July 28, 2011 Citation: R. v. M.(L.) , 2011 ONCJ 465 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , BETWEEN: HER MAJESTY THE QUEEN — AND — L.M., a young person Before Justice Heather Katarynych Ruling on Accused’s Age Mr. Scott Graham .................................................................................................. for the Crown Mr. Jeff Halberstadt ............................................................... counsel for the defendant L.M.

KATARYNYCH J.: ISSUE AND CONTEXT L.M. is before this court for sentencing for possession of cocaine for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act, 1996. Ch. 19 as amended. The charge arose from an incident in Regent Park in this city on October 27, 2010. He entered a guilty plea on November 15, 2010, and on agreed upon facts that established his guilt on this particular charge, he was found guilty. Other charges on that Information were withdrawn after the guilty plea.

His sentencing was scheduled for January 12, 2011 to await the preparation of a pre-disposition report. Shortly after the commencement of the sentencing hearing, the Crown raised an issue about L.’s age at the time of his commission of this crime. The Information before the court cites his date of birth as July 1, 1993. Probation records and the risk assessment prepared in relation to him also cite that particular birthdate.

The Crown had obtained and disclosed to defence counsel certain information that raised question about the accuracy of July 1, 1993 as the actual date of birth, - information that, if accepted as reliable, provided evidence that L.M. had actually been born in 1992, not 1993, and was thus an adult at the time of this particular offence. It was the Crown’s position that L. ought to be sentenced as an adult for this particular crime.

Defence took issue with the “reliability” of the birth record evidence, and urged the court to rely on the birthdate cited in the Information as the correct date; specifically, July 1, 1993. I heard argument from both counsel, and in the days following the hearing, received case law from defence counsel specific to the standard of proof to be brought to bear on the Crown’s evidence. Neither counsel sought to reopen the hearing for argument on this jurisprudence, and I have thus proceeded to adjudication.

This is the court’s ruling on L.M.’s age at the time of the offence for which he awaits sentencing, and the reasons for it. RULING The evidence provided by the Certificate of Birth, corroborated by reliable evidence presented by the prosecutor relevant to the “age” issue (there being no defence evidence on the issue) satisfies this court that L.M. was born on the 24th May 1992.

REASONS I begin with the guidance provided by the YCJA itself on the determination of an accused’s age: - Subsection 14(1) of the Youth Criminal Justice Act makes plain that, despite any other Act of Parliament (but subject to the Contraventions Act and the National Defence Act ) a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a “young person”, and that person shall be dealt with as provided in the Act.

The Act defines “young person” to mean a person who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old and, if the context requires, includes any person who is charged under this Act with having committed an offence while he or she was a young person or who is found guilty of an offence under the Youth Criminal Justice Act. See YCJA s. 2(1).

Section 16 of the Act states when a person is alleged to have committed an offence during a period that includes the date on which the person attains the age of eighteen years, the youth justice court has jurisdiction in respect of the offence and shall, after putting the person to their election under

section 67 (adult sentence) if applicable, and on finding the person guilty of the offence; if it has been proven that the offence was committed before the person attained the age of eighteen years, impose a sentence under this Act; if it has been proven that the offence was committed after the person attained the age of eighteen years, impose any sentence that could be imposed under the Criminal Code or any other Act of Parliament on an adult who has been convicted of the same offence; and if it has not been proven that the offence was committed after the person attained the age of eighteen years, impose a sentence under this Act.

Section 148 of the Act addresses the sort of evidence to which the court can reach, and how that evidence is to be treated when the issue is determination of age in a YCJA proceeding. The testimony of a parent as to the age of a person of whom he or she is a parent is admissible as evidence of the age of that person. See YCJA s. 148(1). A birth or baptismal certificate or a copy of it purporting to be certified under the hand of the person in whose custody those records are held is evidence of the age of the person named in the certificate or copy. See YCJA s. 148(2)(a).

An entry or record of an incorporated society that has had the control or care of the person alleged to have committed the offence in respect of which the proceedings are taken at or about the time the person came to Canada is evidence of the age of that person, if the entry or record was made before the time when the offence is alleged to have been committed. See YCJA s. 148(2)(b).

In the absence of any certificate, copy, entry or record mentioned in s.148(2), or in corroboration of that certificate, copy, entry or record, the youth justice court may receive and act on any other information relating to age that it considers reliable. See YCJA. s.148(3). In any proceedings under the YCJA, the youth justice court may draw inferences as to the age of a person from the person’s appearance or from statements made by the person in direct examination or cross-examination. See YCJA s. 148(4).

Although both counsel had put to me in argument that the requisite standard of proof on this “age” issue was a balance of probabilities, and I had been prepared to proceed on that basis, it was plain from the jurisprudence submitted by defence counsel in the following days that the court ought to bring the criminal standard of proof to bear on this issue. See, for example, albeit in the context of a YCJA s. 64 hearing, R. v. I. C., [2010] O.J. No. 2603 2010 ONSC 3330 Ontario Superior Court per R. A. Clark, J. See also R. v. J. F., [2002] O.J. No. 4434 , Ontario Court of Appeal. I did that.

This court drew no inferences from L.M’s appearance. L.M. did not testify in the hearing as to his age. I drew no inference from that. The court had no testimony from L.M.’s mother. Although an order had been made by a judge of this court at an earlier point to compel her attendance, it appeared that the order had not been served on her, nor had a subpoena issued to have her in court for testimony. Attempts made by the warrant office to locate and serve her had been unsuccessful. See Exhibits 3 and 4.

On the uncontradicted evidence of Canada Immigration Inland Enforcement officer Jonathan de Bruyn, this mother went missing shortly after she learned from him in a meeting on January 18, 2011 that she and her son L. were to be deported from Canada. She disappeared shortly thereafter. There is presently an Immigration warrant outstanding for her. An Immigration warrant in relation to L. has been executed. On the concluding day of argument, defence counsel indicated to the court that someone had told him earlier that morning that the mother had died within the preceding week. There was no evidence to prove death.

A number of individuals from the Somali community were present in court that morning. Some were the same persons who had appeared earlier in the hearing as to the “age” issue. No one from this group was called to testify to the truth of the information given earlier that morning to defence counsel. The face of the “certificate of birth” (Exhibit ‘A’ pending this court’s finding on the age issue), yields the conclusion that it falls within the sort of document proving age permitted by s. 148(2) of the YCJA. It is a printed form used by the Republic of Kenya and assigned an identification number: E. No. 170774.

It cites an entry number 2620264/92 in the Republic of Kenya records for a male child, named ‘L.’ born at Pumwani Hospital in the Nairobi District. The child’s father is identified as one “A.M.”. The child’s mother is identified as “B.K.”. It cites a date of birth of 24 th May 1992 .

The “Informant” is cited as Sgd. Midwife. The name of the Registering Officer is Dr. A. O. Oyoo. The date of registration is 26 May, 1992. The District Registrar is identified as one “S.K. Mosumari”, District Registrar for Nairobi, who certifies by his signature that the certificate is compiled from an entry/return in the Registrar of Births in the District. The certificate is noted to be given under the Seal of the Principla Civil Registrar on the 19 th of May 2006.

Printed on the Certificate of Birth form is this notation: This certificate is issued in pursuance of the Births and Deaths Registration Act (Cap.149) which provides that a certified copy of any entry in ant register or return purporting to be sealed or stamped with the Seal of the Principal Registrar shall be received as evidence of the dates and facts therein obtained without any or other proof of such entry. There is a further bold print notation that a Certificate of Birth is not proof of Kenyan citizenship.

At the bottom of the certificate is the insertion of typed initialling and a reference number CA.25997/B of 18 th May 2006. The certification of the document as a ‘true copy’ is under the stamp of the Canada Border Services Agency, with a date of March 3, 2011 and contains both signature and a Canada Border Services Agency reference number. This document came into the hands of Canada Immigration Inland Enforcement Officer Jonathan de Bruyn, who is also a sworn peace officer, from L.M.’s mother in a meeting with her on January 18, 2011.

It was the purpose of the meeting to provide the mother with Immigration Canada’s pre-removal risk decision, and to prepare to implement the removal order that had been made against her and her son L.M. She had been required to bring to that meeting, inter alia, certain identification documents in relation to both herself and her son, L.M. to assist Immigration Canada to obtain travel documents for them. She attended that meeting with legal counsel and her husband (no relation to L.) who translated for the mother, and produced this particular document as a “Kenyan birth certificate” for L..

Mr. de Bruyn took possession of it, made a photocopy, gave the mother and her counsel a true copy and kept the “original” given to him by the mother. Mr. de Bruyn obtained verification of the accuracy of the information contained in this document through communication with designated officials in Kenya. See Exhibit 1. The case history in evidence, confirmed as accurate in Mr. de Bruyn’s testimony, recites the history of the refugee claim made by this mother on behalf of herself and her son, L. to give context to the unavailability of the mother to provide evidence on the birthdate issue.

The case history recites the rejection of the PRRA application on October 27, 2010, and the initiation of the process for removal through a meeting with the mother B.K. on January 18, 2011.

It was in that meeting that the mother provided the document in response to the requirement that she bring documents to that interview, marked as Exhibit ‘A’ – noted in the case history to be the “birth certificate provided by B.K. and seized at that time.” In the paperwork completed for Immigration Canada on October 21, 1996 (the Personal Information Form by the mother under Immigration and Refugee Board client Identification No. 3332-1718 (See Exhibits 5 and 7) she lists L. as a ‘son’ born 01-07-92. And his full name as L.M.. She lists no other son.

That birthdate information coincides with the information contained in the Certificate of Birth. There is evidence establishing a clear nexus between this mother and the Kenyan Certificate of Birth. In the

section of the P.I.F. reserved for ‘Previous Residence/Travel’, the mother lists her presence in Nairobi, Kenya from November 1991 to August 1996, and recites a move between August 1991 and July 1996 to Momhasa, Kenya, giving the purpose of her travel: “to escape war”. I took into account the following: - It is true, as defence counsel argued, that there are a variety of “birthdates” in evidence in relation to L.. I took into account in this regard that the mother herself has provided birthdates for L. other than that contained in the Kenyan Certificate of Birth.

For example, the Canada Border Services Agency history recites L.M.’s entry to Canada on July 23, 1996 accompanying his mother “B.K.” at the Fort Erie Peace Bridge, and in the paperwork completed at the time of arrival, the notation of L.’s birthdate recites a date of July 1, 1993 . See Exhibit 9. That notation contradicts the May 24, 1992 date stated in the Kenyan Certificate of Birth document.

I took into account in this regard, Mr. de Bruyn’s uncontradicted evidence that the port of entry information relies for its accuracy, when the person entering Canada arrives with no identification documents (as was the case in relation to this mother) on information provided verbally by that person. I am invited by defence to have doubt about the accuracy of that information, that either she made a mistake or the port of entry officer recorded incorrectly whatever she told him/her. I may have doubt. It is not a reasonable doubt.

I have no evidence to shed light on what led to the recording of that particular date. I also took into account the context of the mother’s absence for evidence in this case. She and her husband left the meeting prematurely after arguing between themselves about something. The premature leaving was a “misunderstanding”, as the husband would later explain to Mr. de Bruyn in his follow-up telephone call to

schedule a continuation date. Mr. de Bruyn provided a continuation date: January 24, 2011. Neither the mother nor L. attended that meeting. Her whereabouts have been unknown ever since, despite Mr. de Bruyn’s efforts to contact her by telephone, using the numbers that he had for her. L. is in detention. The case history in evidence cites issue of Immigration warrants on 19 January, 2011. The warrant is still outstanding on this mother. The warrant in relation to L. was executed on 21 January 2011. I have no doubt that the individual interviewed by Mr. de Bruyn on January 18, 2011 was L.M’s mother.

B.K. is named in the Immigration and Refugee Board (Convention Refugee Determination Division) decision of 18 September, 1997 as the principal claimant. She is recited to be the designated representative of L.M. named as the minor claimant.

I have no reasonable doubt that L. is this mother’s son and that he was with her in Kenya while she travelled in May 1993 from the Kenya/Somalia border area to see her mother in northern Somalia. In her information to the Refugee Board, according to the adjudication decision filed in evidence in this hearing, and in reference to the spring of 1993, she indicated that she had “decided to go by sea with my son as it was unsafe to travel over land. She further recites that the boat sank after departing from Mombassa “but we managed to survive” (See Exhibit 6).

I cannot speculate, as invited by defence counsel that she may have been pregnant with L. at that time. There is no evidence that her reference to travelling with her son was a reference to a child in utero. In the end, none of the defence arguments had sufficient evidentiary support from the Crown’s case to raise reasonable doubt about the integrity of the Kenyan Certificate of Birth entered in the hearing as Exhibit “A”. I have now marked it Exhibit 15 in the hearing, and in reliance on it, have no reasonable doubt that the birthdate of L.M. is May 24, 1992. The offence date is October 27, 2010.

L.M. had turned eighteen years of age on 24th May 2010. He was an adult when he committed this crime. Released on July 28, 2011 ............................................ Justice H. L. Katarynych