Law Times

Page 4 January 29, 2018 • Law Times www.lawtimesnews.com NEWS NEWS NEWS Officer facing disciplinary hearing for alleged stomping Ruling clarifies access to records under YCJA BY SHANNON KARI For Law Times T he Ontario Court of Appeal has clarified the route a party must take when challenging the ruling of a youth court judge over access to records under the Youth Criminal Justice Act. A decision can only be re- viewed by way of a certiorari application under the "extra- ordinary remedies" section of the Criminal Code, said the court in a case stemming from an alleged beating by a Toronto police officer of a young man de- tained for driving offences. "There was no right of appeal from the decision of the youth court judge to the Superior Court of Justice," wrote Justice James MacPherson in the unan- imous decision in Toronto Po- lice Service v. LD, issued Jan. 12. The Court of Appeal set aside the decision of Superior Court Justice Ed Morgan, who ordered that the youth records of LD be turned over to officer Steven Mignardi for use in his police disciplinary hearing. Justice Marion Cohen, a youth court judge in the Ontario Court of Justice, had originally denied the request for the records. While the court left it to the parties to decide what to do next, the decision is significant in a broader sense, says Mary Bird- sell, executive director of Justice for Children and Youth, which was an intervener in the case. "Youth court judges are ex- perts in dealing with these re- cords issues," says Birdsell. As a result, it is appropriate that the certiorari standard [re- quiring an appellant to show the judge exceeded her jurisdiction or made a fundamental error in law] is required when seeking to overturn a youth court ruling related to records. The emphasis on protecting the privacy of young persons is another reason there should be significant deference shown to youth court judges, says James Sayce, a lawyer at Koskie Minsky LLP in Toronto. "Superior Court judges argu- ably don't have the same knowl- edge base as the specialized court," says Sayce, who is one of the lawyers acting in a class ac- tion against the province over the use of solitary confinement in youth facilities. The YCJA has different provi- sions for access to youth records depending on which forum they are to be used. In a criminal case, they "shall" be disclosed to the defence if a sworn affidavit is provided that explains how they are needed for "full answer and defence." Otherwise, they may be dis- closed if the requesting party shows it has a "valid interest" or if it is in the interests of the ad- ministration of justice. The legal threshold in non- criminal proceedings is usually a factual question, says Birdsell. "I don't think there is really an articulated test. The question is what is reasonable in the cir- cumstances," she says. In the application before Co- hen, the officer requested all of LD's youth criminal records. Mignardi is facing a disciplinary hearing for allegedly "stomping" on the youth in a police inter- view room. LD recounted the incident to a youth worker at an open detention youth facility. The employee took photos of LD, which showed bruising and a large shoe imprint on the top of his left arm, the court heard. LD had minor convictions for petty theft, breach of recogni- zance and possession of a mari- juana joint. "What is there in the records relevant to credibility?" asked Cohen in her decision. The judge noted that Toronto police were not seeking to fire or to demote the officer if there is a finding of misconduct. "Unless the records are de- monstrably relevant, allowing parties to a misconduct hearing to 'rummage in the records' risks deterring a vulnerable class of complainants from making or pursuing complaints under the Police Services Act," she wrote. Morgan, in his ruling, dis- agreed and stressed that privacy protections are not the same for young offenders when they are witnesses, especially in police disciplinary hearings. "A person in Mignardi's po- sition needs to know, or at least have information which will help him discover, whether the testi- mony against him is a result of youthful impulsivity, misunder- standing, or thoughtlessness," the Superior Court judge wrote. The Criminal Lawyers' As- sociation was also an intervener and it took issue with some of the broader principles set out by Cohen on access to records. "Our main point was that Justice Cohen erred when she said the records had no rel- evance to credibility," says To- ronto defence lawyer Margaret Bojanowska, who acted for the criminal lawyers' group. While the Superior Court decision was quashed for pro- cedural reasons, the analysis of Morgan on access to youth re- cords "can still be relied upon for obiter," she says. Going forward, any appli- cation for records for a non- criminal proceeding will need to be well thought out when it is argued at the youth court level, suggests Sayce. "You need to ensure you have a very good reason for the records. You are now probably only getting one kick at the can," he says. LT James Sayce says any application for records for a non-criminal proceeding will need to be well thought out when it is argued at the youth court level. 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