Criminal Court Disclosure SCSM

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	88
Page Categories:	[Criminal Court Disclosure]
Citation:	Criminal Court Disclosure SCSM, CLNP 88, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/02/03

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A Wagg Application

D. P. v. Wagg, 2004 CanLII 39048 (ON CA)

[14] The Divisional Court disagreed with Juriansz J. that the Crown brief must be produced to the plaintiff merely because the contents are relevant. Rather, production should not be compelled until the appropriate state agencies have "been given an opportunity to assess the public interest consequences involved and either a court order or the consent of the state and all parties is obtained" (para. 19). The court pointed out that there could be a myriad of documents and other material in the Crown brief that might be subject to privacy and other interests that the parties to the civil action will not necessarily have an interest in protecting. The court noted the concerns expressed in the Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (the "Martin Report") [see Note 1 at end of the document] about "the dangers of unwarranted dissemination of Crown disclosure documents" (para. 25). Thus, there needed to be some screening mechanism by the appropriate state agency or the court before the contents of the Crown brief were produced.

[17] The Divisional Court then explained how the screening mechanism would operate. Since I agree entirely with this part of [page236] the court's reasons, I intend to summarize this part of the reasons at some length:

-- the party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe in general terms the nature of its contents;

-- the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely, the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

-- the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non- disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information"

(para. 51).

[30] In Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), this court held that there is a common law implied undertaking not to use materials disclosed in civil proceedings in any other proceedings. Morden A.C.J.O., at p. 367 O.R., explained that the principal rationale for the rule is "recognition of the general right of privacy which a person has with respect to his or her documents". Since the civil discovery process is "an intrusion on this right under the compulsory processes of the court . . . this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place". However, he also recognized that there is a broader principle, which is more directly applicable to the facts of this case. He referred, at pp. 367-68 O.R. to the reasons in Lindsey v. Le Sueur, [1913] O.J. No. 168, 29 O.L.R. 648 (C.A.), at p. 655 O.L.R., that because a party had been "given access to and the use of the documents for a particular purpose . . . there is necessarily an implication that they are not to be used for any other purpose". [page241]

Disclosure of Criminal Records of a Minor

Toronto Community Housing Corporation v. R., 2018 ONCJ 492 (CanLII)

[7] In this context, TCHC brings an application pursuant to Part VI of the YCJA for access to court and police records relating to the alleged offences described above. THCH wants the records to launch a proceeding to evict R.V.’s mother and consequently her four children based on R.V.’s alleged “illegal act” and conduct that it says has “seriously impaired the safety of any person” on TCHC property within the meaning of sections 61(1) and 66 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, as amended. While TCHC’s claim, if successful, would give TCHC access to information identifying the young person as having been dealt with under the YCJA, TCHC does not seek access to any portion of the records that identify the other young person. He is not a resident in a TCHC property. TCHC is content that the Court make redactions accordingly.

[8] TCHC submits that if the Court denies it access to the records in this case, it will not be able to launch its intended eviction proceeding because all of the evidence upon which it needs to rely consists of information that is protected by the YCJA. But TCHC also says this case has broader implications than for just this family.

[14] Given the finding that TCHC has a “valid interest” in the records, this case calls on the Court to determine whether an order granting TCHC access the records to pursue what it refers to as its “community safety mandate” is “desirable in the interest of the proper administration of justice” according to the test set out in section 119(1)(s)(ii) of the YCJA. This requires the Court to balance TCHC’s “valid interest” against versus R.V.’s constitutionally protected privacy interest in the records.

[15] For the reasons that follow, I am unable to find that it is “desirable in the interest of the proper administration of justice” that TCHC be given the access to the records that it seeks. Therefore, I am dismissing TCHC’s application.

[47] However, TCHC submits that this is not an “ordinary” eviction proceeding. The evidence upon which TCHC seeks to rely consists of entirely of information that is protected by the YCJA. TCHC says that absent a Youth Court Order granting it access and a right of “limited disclosure”, it is unable to even bring proceedings before the Board. To bring an application, TCHC says it would at the very least need to identify R.V. by his full name and address and connect him to the police investigation and youth criminal charges.

[48] Even without producing physical court or police documents, TCHC says it “appreciates that it cannot share any information with the Board (or any other party) that suggests R.V. was the subject of a police investigation for a criminal act committed while he was under 18 years of age”. TCHC submissions in this respect are based on the operation of various sections in Part 6 of the YCJA, which deals with publication, records and information.

[49] The records sought by TCHC are court and police records within the meaning of sections 114 and 115 of the YCJA. Section 114 provides that a youth court may keep a record of any case that comes before it arising under the YCJA. And section 115 provides that police records relating to any offence alleged to have been committed by a young person may be retained by any police force responsible for or participating in the investigation.

[50] The YCJA places restrictions on TCHC’s ability to identify R.V. and to access and use the records and information contained in them in the eviction proceeding.

(2) Young Persons Have Heightened Privacy Rights

[80] Young persons are inherently vulnerable and thus have “heightened privacy rights” that are protected across different areas of law, not only in the criminal context. A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII) was a case in which a 15 year old girl had been cyberbullied. The Supreme Court heard an appeal that considered the propriety of a publication ban. In that context, at ¶ 17-18, the Supreme Court said:

17  Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law.  This results in protection for young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child.   As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm.  The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. D.B., 2008 SCC 25 (CanLII), [2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, 2001 SCC 2 (CanLII), [2001] 1 S.C.R. 45, at paras. 170-74.

18  This led Cohen J. in Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII), to explain the importance of privacy in the specific context of young persons who are participants in the justice system:

The concern to avoid labeling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act.  However it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance.

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17).  These considerations apply equally if not more strongly in the case of young persons.  Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.

. . .

. . . the protection of the privacy of young persons fosters respect for dignity, personal integrity and autonomy of the young person.  [Emphasis added; paras. 40-41 and 44.]

[91] I accept that TCHC is obligated to “create a safe environment for its residential communities”. I accept it has an interest in pursuing what it has called its “community safety mandate”. I also accept that if it decides to launch the eviction proceeding, there is an interest in correctly disposing of the litigation. See M.(A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157 ¶ 29.

[92] However, despite these goals, TCHC has failed to satisfy the Court that access to the records is “desirable in the interest of the proper administration of justice”. In my view, granting access to the record does not achieve THCH’s goal of advancing safety to a degree sufficient to override R.V.’s privacy interest in the records.

PART VII: ORDER

[140] Based on the foregoing, TCHC’s application is dismissed.

Youth Criminal Justice Act (S.C. 2002, c. 1)

10 (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.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence; or

(b) [Repealed, 2019, c. 25, s. 379]

(c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

(4) A youth justice court judge shall, on the ex parte application of a peace officer, make an order permitting any person to publish information that identifies a young person as having committed or allegedly committed an indictable offence, if the judge is satisfied that

(a) there is reason to believe that the young person is a danger to others; and

(b) publication of the information is necessary to assist in apprehending the young person.

(5) An order made under subsection (4) ceases to have effect five days after it is made.

(6) The youth justice court may, on the application of a young person referred to in subsection (1), make an order permitting the young person to publish information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, if the court is satisfied that the publication would not be contrary to the young person’s best interests or the public interest.