



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an offence
    other than an offence referred to in subsection (1), if the victim is under the
    age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Essel, 2019 ONCA 918

DATE: 20191121

DOCKET: C63917

Hourigan, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samuel Essel

Appellant

Marianne Salih, for the appellant

Philippe G. Cowle, for the respondent

Heard: September 19, 2019

On appeal from the conviction entered on July 8, 2016 and
    the sentence imposed on April 20, 2017 by Justice Stephen Bale of the Superior
    Court of Justice, sitting with a jury.

BROWN J.A.:

PART I: OVERVIEW

[1]

Following a trial before a judge and jury, the appellant was convicted
    of sexual assault, sexual interference, and uttering threats to cause death.
    His conviction for sexual assault was stayed pursuant to the principle in
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. The appellant was sentenced to three
    years incarceration.

[2]

The appellant appeals his conviction and
    seeks leave to appeal his sentence.

[3]

At the hearing, we dismissed the appeal,
    with reasons to follow. These are those reasons.

PART II: CONVICTION
    APPEAL

THE APPEAL

[4]

At the time of the sexual offences, the appellant was 26 years old and
    the complainant was 14 years of age. The complainant alleged that the appellant
    had sexual intercourse with her at her home while her parents were away and, on
    another occasion, kissed her in her bedroom for about five minutes. The
    complainant testified that she and the appellant were dating when he committed
    the offences.

[5]

The appellant testified at trial and
    denied the allegations.

[6]

The jury convicted the appellant.

[7]

The appellants single ground of appeal
    from conviction concerns the sequence in which the trial judge disposed of two
    of the applications he brought at trial: (i) a constitutional challenge to s.
    119(4) of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (the 
YCJA
), which limits access to records concerning extrajudicial measures taken
    in respect of a young person; and (ii) a third party records application
    pursuant to s. 278.3 of the
Criminal Code
.

[8]

The appellant submits that the trial
    judge erred by failing to first dispose of his constitutional challenge.
    Instead, the trial judge wrongly first dealt with and dismissed his s. 278.3
    third party records application and then treated his constitutional application
    as moot: 2016 ONSC 3825. The appellants argument centres on the manner in
    which the trial judge dealt with his request for disclosure of a record of
    extrajudicial measures (EJM) kept by the Durham Regional Police Service (the
    Durham Police) pursuant to s. 115(1.1) of the
YCJA.

[9]

Some background is required to put this
    ground of appeal in context.

THE EARLY STAGES OF THE APPELLANTS s. 278.3 APPLICATION

[10]

The
    appellant was charged in January 2013 and, following a preliminary inquiry,
    committed in March 2014 to stand trial. The appellants trial originally was
    scheduled to commence in June 2015.

[11]

As part of his defence, the appellant intended to
    challenge the complainants credibility on the basis that, on an earlier
    occasion, she had falsely accused a fellow student, whom I will call X, of
    sexual assault.

[12]

At an April 2015 appearance in the Superior Court of
    Justice, defence counsel advised that the appellant intended to make a s. 278.3
    third party records application and undertook to serve subpoenas on three third
    parties: the Durham Police; the school board in which the complainant was a
    student; and the local Childrens Aid Society. Although copies of the subpoenas
    were not in the appeal record, it appears they used language that sought
    documents and records relating to an investigation involving the complainant
    and allegations of inappropriate sexual activity with X.

[13]

On a June 8, 2015 attendance, counsel for the Durham
    Police informed the court of the results of its searches made in response to
    the subpoena. The Durham Police filed with the court in a sealed envelope
    certain records and advised that it also possessed a record kept pursuant to
    the
YCJA
.

[14]

The Crown advised that it did not have possession of
    the
YCJA
record nor had it been
    asked by the defence to inquire about the existence of any youth record.

[15]

The defence indicated it would apply to the Youth
    Court for production of the youth record, and the trial date was adjourned.

APPLICATION BEFORE THE YOUTH COURT

[16]

On
    October 23, 2015, Felix J. of the Ontario Court of Justice, sitting as a Youth
    Court judge, heard the appellants application. The police had advised that
    they possessed a record maintained under s. 115(1.1) of the
YCJA
and
    the matter had been resolved by way of extrajudicial measures. Section 115(1.1)
    of the
YCJA

states: The police force
    shall keep a record of any extrajudicial measures that they use to deal with
    young persons.

[17]

Section 2(1) of the
YCJA
defines extrajudicial measures as measures other
    than judicial proceedings under [the
YCJA
] used to deal with a young person alleged to have
    committed an offence and includes extrajudicial sanctions. Brock Jones, Emma
    Rhodes, and Mary Birdsell, in
Prosecuting and Defending Youth
    Criminal Justice Cases
, 2nd ed
(Toronto:
    Emond Montgomery Publications, 2019), at p. 135, describe the wide variety of
    EJM options available for police and prosecutors, including: making a simple
    decision to take no further action; giving the young person a warning; giving a
    more formal police or Crown caution to the young person; referring the young
    person to community resources or agencies; and, on a post-charge basis,
    allowing the young person to complete extrajudicial sanctions.

[18]

By the time of the application to the Youth Court,
    defence counsel had spoken to X and understood that X had never been charged in
    respect of a matter involving the complainant.

[19]

The Crown and the Durham Police took the position that
    s. 119(4) of the
YCJA
prevented
    disclosure of the EJM record to the appellant. Section 119(4) of the
YCJA
states:

119 (4)
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.

[20]

The Youth Court judge dismissed the appellants
    application, holding that he lacked the jurisdiction to order police to provide
    the record to the court and could not interpret s. 119(4) in a manner that
    would require production of the requested record.

THE CONTINUATION OF THE s. 278.3 APPLICATION

[21]

The
    appellants trial was re-scheduled to commence in June 2016.

[22]

In April 2016, the trial judge dealt with three
    pre-trial applications brought by the appellant: the application under s. 278.3
    of the
Criminal Code
initiated
    the previous year and a related s. 276 application, as well as a new
    application advancing a constitutional challenge to s. 119(4) of the
YCJA
. In that application, the appellant contended that
    the limits placed on the production of EJM records by
YCJA
s. 119(4) were unconstitutional because they
    infringed his rights under ss. 7 and 11(d) of the
Canadian Charter
    of Rights and Freedom
. The appellant sought
    a declaration that s. 119(4) of the
YCJA
was of no force and effect.

[23]

The appellant requested that the trial judge first
    dispose of his constitutional application before dealing with the third party
    records application
because he had not been successful
    in obtaining the EJM record from the Youth Court.
The appellant took the
    position that he did not know what was in the EJM record. But, if it turned out
    to contain information about a prior false allegation by the complainant, that
    would provide the appellant with a better evidentiary foundation for his s.
    278.3 application. Defence counsel wanted to marshal the best evidence in
    advance of arguing the s. 278.3 application.

[24]

The applications were heard over three days. The trial
    judge first heard argument on the appellants constitutional application. For
    the first day and one-half, the appellant made his submissions based on the
    assumption that the EJM record in the hands of the police possibly involved a
    disposition using extrajudicial measures against the complainant for some
    discreditable conduct on her part, such as making a false allegation.

[25]

Only towards the end of the second day of the hearing
    did the issue arise as to whom the EJM record related. The complainants
    counsel thereupon made inquiries of the Durham Police pursuant to
YCJA
s. 124, which states: A young person to whom a
    record relates and his or her counsel may have access to the record at any
    time. Complainants counsel informed the court that the Durham Police advised
    there were no records concerning extrajudicial measures used against the
    complainant. The record identified by the Durham Police in response to the appellants
    subpoena was in respect to someone other than the complainant but contained a
    reference to her.

[26]

Durham Police provided no information regarding whom
    the record concerned. Proceeding on the assumption that the record concerned
    extrajudicial measures used to deal with X, appellants counsel acknowledged
    that he had not properly served X with his s. 278.3 application. In the result,
    that lack of service did not matter. The trial judge heard the appellants
    third party records submissions on the assumption that the EJM record was a
    record dealing with X, not the complainant, and the trial judge determined the
    issue notwithstanding the lack of proper service on X: at para. 11.

THE TRIAL JUDGES REASONS

[27]

The
    trial judge disposed of both applications in one set of reasons. He described
    the theory of the defence regarding the relevance of the EJM record as follows,
    at para. 21:

The defence theory with respect to the relevance of the records
    sought is as follows:

·

that there is evidence of some sort of sexual activity between
    the complainant and a male youth;

·

that that sexual activity came to the attention of school
    authorities, the children's aid society and the police;

·

that because of the strict religious convictions of the
    complainants family, she had a motive to deny that the sexual activity was
    consensual, when in fact it was;

·

that no charges were laid against the male youth;

·

that the failure of the police to lay charges against the male
    youth may have been because the complainant recanted, or because her denial
    that the sexual activity was consensual had been shown to be demonstrably
    false; and

·

that therefore, the records sought are likely relevant, and their
    production is necessary in the interests of justice, and to allow the accused
    to make full answer and defence.

[28]

The
    trial judge then began to apply the first stage of the regime in
R. v.
    Mills
, [1999] 3 S.C.R. 668, governing the production of records pursuant
    to
Criminal Code
ss. 278.3 to 278.91. He summarized, at paras. 22 to
    27, the evidence that was before the court on both applications:

In order to satisfy the likely relevant test, the accused
    must persuade the court that there is an evidentiary foundation demonstrating a
    reasonable possibility that the document will contain relevant information.

The sources of evidence referred to by counsel on the hearing
    of the third party records application in this case are:

·

excerpts from the transcript of the evidence given at the
    preliminary inquiry, by the complainant and her parents;

·

the affidavit of Marcia Collins sworn May 28, 2015, filed in
    support of the application; and

·

the affidavit of Marcia Collins sworn September 24, 2015, filed
    in support of the accused's application in youth justice court.

The evidence given at the preliminary inquiry amounts to:

·

that the complainant had a strict upbringing and that premarital
    anything sexual was not something that she should be involved in;

·

that something with a boy had happened in the past, but she did
    not get in trouble because it was not something that she wanted to do; and

·

that her father spoke to the school and the police about some
    little, uh, thing, something that happened in the school which was not that
    serious.

Marcia Collins is a secretary working in defence counsels
    office. In her affidavit sworn May 28, 2015:

·

she swears that she was advised (by whom, she does not say, but
    presumably by Mr. Rippell [trial counsel for the appellant]) that the young man
    who was the subject of the something with a boy referred to in the
    preliminary transcript was never charged in relation to the something;

·

she swears that she understands (the basis of her understanding
    is not stated) that the accused was aware of the name of the young man;

·

she says that she was advised (again, by whom, she does not say)
    that the accused had spoken to an unnamed friend of the unnamed young man;

·

she says that she was advised (again by whom, she does not say)
    that the young man was accused of forcing the complainant to perform oral sex
    on him; and

·

she states as a fact that the accused party has always
    maintained that [the complainant's] allegations were untrue (presumably based
    upon information given by the young man to the friend of the young man, who
    gave it to the accused, who gave it to Mr. Rippell, who gave it to her).

In the affidavit of Marcia Collins sworn September 24, 2015,
    she swears that Mr. Rippell advised her:

·

that he had spoken to the young man who was accused by [the
    complainant] of sexual impropriety on a previous occasion;

·

that the young man had told Mr. Rippell that the Durham Regional
    Police had spoken to him, and to his father, and that the young man was never
    charged; and

·

that the young man had told Mr. Rippell that the allegations
    against him were false.

In the absence of any explanation as to why the evidence
    contained in the Collins affidavits could not have been given by the young man,
    it is inadmissible hearsay. However, even if it were to be accepted as evidence
    on this application, and putting it at its highest, it says no more than that
    the male youth denied either that the incident had occurred, or that the sexual
    activity had been non-consensual  a wholly unremarkable response.

[29]

In
    his reasons, the trial judge first dealt with and dismissed the third party
    records application, holding that the appellant had not satisfied
the first stage of the
Mills
regime test

    that is, the appellant had not established the records sought were likely
    relevant to an issue at trial. He wrote, at para. 32:

The evidence is that something with a boy had happened in the
    past, some little, uh, thing, something that happened in the school which was
    not that serious. There are any number of reasons why charges might not be
    laid in such circumstances. The police may simply have been unsure as to what actually
    took place, or may have concluded that what did take place was not particularly
    serious. And, under sections 4, 5 and 6 of the
YCJA
, a police officer
    is required to consider whether it would be sufficient to take no further
    action, warn the young person, administer a caution, or with the consent of the
    young person, refer him to a program or agency in the community that may assist
    him not to commit offences. The suggestion that the reason why no charges were
    laid against the male youth was that the complainant recanted amounts to
    nothing more than unfounded speculation.

[30]

The
    trial judge then considered and dismissed the constitutional application,
    holding, in part, that the application was moot in light of his dismissal of
    the third party records application: at paras. 38-46.

[31]

On appeal, the appellant does not challenge the trial
    judges first stage
Mills
analysis,
    except to the extent that the analysis could have proceeded differently
    following a successful constitutional challenge to
YCJA
s. 119(4).

REVISITING THE ISSUE DURING THE TRIAL

[32]

The
    defence returned to the issue of the EJM record twice during trial.

[33]

First, during her cross-examination, the complainant
    testified that her contact with the police in relation to the appellant was the
    first time she had ever talked to a police officer. The defence sought to
    impeach the complainant using the earlier matter involving X because, according
    to the complainants preliminary inquiry testimony, she appeared to have had
    some contact with the police at that time. In the ensuing argument about the
    permissible scope of the impeachment given the trial judges prior rulings
    about the EJM record, defence counsel repeated the arguments made on the
    constitutional application, but now in support of the position that questioning
    the complainant on her contact with the police in relation to the X matter
    would not violate
Criminal Code
s. 276, which limits the scope of questioning on a complainants prior sexual
    history.

[34]

Defence counsel also informed the court that he was in
    contact with Xs father, had left a subpoena for X at his residence, and could
    get an affidavit from Xs father.

[35]

The trial judge ruled that the defence could attempt
    to impeach the complainant on certain evidence she gave at the preliminary
    inquiry but he could not ask her to describe the incident concerning X.

[36]

The second occasion occurred when the defence
    cross-examined the complainant about how the intercourse she alleged the
    appellant had initiated came to an end. The complainant testified that the
    appellant had ejaculated. She went on to state that she had never had sex
    before and did not know the signs of ejaculation. That prompted defence counsel
    to advise he intended to bring a s. 276 application on the basis that
    information he had about the event with X indicated it involved ejaculation.
    The defence did not proffer any new evidence that was not before the court at
    the time of the April applications, but offered to seek an affidavit from X.

[37]

The trial judge denied the defences request to bring a
    s. 276 application, stating that it was no more than a fishing expedition
    and, therefore, the renewed request for a constitutional exemption to look at
    the EJM record was moot.

ISSUE ON APPEAL

[38]

On
    appeal, the appellant does not challenge the trial judges analysis on the
    first stage of the third party records application under the
Mills
regime. Instead, the appellant submits that the trial judge erred by first
    dealing with his s. 278.3 application and then dismissing his constitutional
    application as moot.

[39]

The appellant argues that had the trial judge first
    dealt with his constitutional application, the evidence showed that the record
    contained information potentially relevant to the Crowns prosecution of the
    appellant. As a result, the Crown was under a duty to obtain information about
    the relevance of the EJM record from the police for its consideration and
    disclosure to the appellant. Since
YCJA
s. 119(4) prevented the Crown from doing so, it violated the appellants
    s. 7 and s. 11(d)
Charter
rights
    and was unconstitutional.

ANALYSIS

[40]

Given
    the state of the record that was before the trial judge, I am not persuaded
    that the trial judges analysis was tainted by reversible error. At the heart
    of the appellants argument lies the assertion that the sequence in which the
    trial judge determined the constitutional challenge to
YCJA
s. 119(4)
    and the
Criminal Code
s. 278.3 application improperly relieved the
    Crown of a legal obligation it otherwise bore to disclose or inquire into
    information. Neither the jurisprudence nor the evidence before the trial judge
    supports that assertion.

The Crowns duty to disclose

[41]

Under
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, the Crown is obliged to
    disclose to the accused the fruits of the investigation, namely all relevant
    information in its possession relating to the investigation against an accused:
    at pp. 345-46; see also
R. v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at
    para. 22. Relevant information for this purpose includes any information in
    respect of which there is a reasonable possibility that it may assist the
    accused:
McNeil
, at paras. 17 and 44.

[42]

In the present case, the Crown did not possess the EJM
    record identified by the Durham Police in response to the appellants subpoena.

[43]

Further, the appellants argument before the trial
    judge proceeded on the basis that the EJM record was a record within the meaning
    of
Criminal Code
s. 278.1, in
    that it contained personal information for which there was a reasonable
    expectation of privacy. Given that the charges against the appellant were
    sexual offences listed in s. 278.2(1)(a), even if the EJM record was in the
    Crowns possession or control, s. 278.2(3) would limit the Crowns obligation
    to one of notice, not disclosure: In the case of a record in respect of which
    this section applies that is in the possession or control of the prosecutor,
    the prosecutor shall notify the accused that the record is in the prosecutors
    possession but, in doing so, the prosecutor shall not disclose the records
    contents; see also
McNeil
, at
    para. 21.

[44]

Although the police also have a corollary duty to
    disclose to the Crown the fruits of the investigation, in this case it was not
    suggested that the EJM record was part of the material pertaining to the police
    investigation of the appellant:
McNeil
, paras. 14 and 24.
[1]


The Crowns duty to inquire

[45]

The
    appellant submits that even if the Crown was not under a duty to disclose the
    EJM record, it owed a duty to inquire into and disclose information about that
    record.

[46]

In
McNeil,
at para. 49, the Supreme Court of Canada adopted as an apt description
    of the Crowns obligation to make reasonable inquiries about evidence the
    following passage from the decision of Ryan J.A. in
R. v. Arsenault
(1994), 153 N.B.R. (2d) 81 (C.A.), where he stated,
    at para. 15:

When disclosure is demanded or requested, Crown counsel have a
    duty to make reasonable inquiries of other Crown agencies or departments that
    could reasonably be considered to be in possession of evidence.  Counsel cannot
    be excused for any failure to make reasonable inquiries when to the knowledge
    of the prosecutor or the police there has been another Crown agency involved in
    the investigation. Relevancy cannot be left to be determined by the
    uninitiated.
If Crown counsel is denied access to another
    agencys file, then this should be disclosed to the defence so that the defence
    may pursue whatever course is deemed to be in the best interests of the
    accused.
This also applies to cases where the accused or defendant, as
    the case may be, is unrepresented[.] [Emphasis added.]

[47]

The
    Supreme Court went on to state that [t]he same duty to inquire applies when
    the Crown is informed of potentially relevant evidence pertaining to the
    credibility or reliability of the witnesses in a case:
McNeil
, at
    para. 50.

[48]

In
    the present case, knowledge about the existence of a document was not the
    issue. The defence came to know about the existence of an EJM record as a
    result of the subpoena it served on the Durham Police as part of its
    application under s. 278.3. However,
the appellant
    argues that the Crowns duty to inquire goes further than ascertaining the mere
    existence of a document. He points to the decision of the Supreme Court of
    Canada in
R. v. Quesnelle
, 2014
    SCC 46, [2014] 2 S.C.R. 390, where the court observed that the
Mills
regime does not displace the Crowns duty to inquire and
    assess potentially relevant material, stating, at para. 18:

The Crowns
McNeil
duty to make reasonable inquiries
    and the corresponding police duty to supply relevant information and evidence
    to the Crown apply notwithstanding the
Mills
regime. The
Mills
regime governs the
disclosure
of records in sexual offence trials,
    but does not displace the Crowns duty to make reasonable inquiries and
obtain
potentially relevant material (or the police duty to pass on material to the
    Crown) under
McNeil
. As an officer of the court and Minister of
    Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid
    wrongful convictions, in the prosecutions of all offences, including sexual
    offences. The
Mills
regime simply replaces the obligation to
produce
relevant records directly with an obligation to
give notice
of their
    existence:
Criminal Code
, s. 278.2(3). [Emphasis in original.]

[49]

The
    court stated that although s. 278.2(3) prevents the Crown from disclosing a s.
    278.1 record in its possession to the accused, it should in appropriate
    circumstances give an assessment of the likely relevance of a record in its
    possession, as well as indicate the basis of its relevance and whether it
    intends to use any information contained in the records protected by
Mills
as part of its case against an accused: at para. 16. As well, [t]he Crowns
    assessment that the record is relevant for a specific reason will likely
    establish a basis for the judge to order production to the court: at para. 16.
    This court stated in
York (Regional Municipality) v. McGuigan
, 2018
    ONCA 1062, 144 O.R. (3d) 81, at para. 90, that the Crown owes this duty unless
    the notice it receives about material or information appears unfounded.

[50]

The appellant submits that
YCJA
s. 119(4) prevents the Crown from discharging that
    aspect of its duty to inquire and assess potentially relevant material. As a
    result, the trial judge should have first dealt with the constitutionality of
    the limit imposed by statute on the Crowns duty to inquire and assess.

[51]

I am not persuaded that, in the circumstances of this case,
the operation of
YCJA
s. 119(4) deprived the
    appellant of an assessment of the relevance of the record by the Crown.
As
    applied to the circumstances raised by the present case, the Crowns duty to
    inquire about and assess material is triggered when the Crown is informed of
    potentially relevant evidence pertaining to the credibility or reliability of
    the witnesses in a case:
McNeil
, at para. 50.

[52]

I accept the Crowns submission
that nothing in
Mills
,
McNeil
or
Quesnelle
requires the Crown to
    obtain and review the contents of records that do not fall within the ambit of
    first party disclosure and that have not been shown to be potentially relevant.
    As the Crown points out, in
Quesnelle
the Supreme Court stated that
    the mere fact that a police occurrence report concerns a complainant or
    witness is not enough to make the report relevant to an otherwise unrelated
    prosecution and, as well, the fact that a complainant has reported sexual
    violence in the recent or distant past [] is not, without more, enough to
    render a police occurrence report relevant: at para. 17.

[53]

The
    Crown submits that the appellant failed to demonstrate, on the evidence, that
    the EJM record was potentially relevant to an issue at the trial. Specifically,
    at paras. 27 and 28 of its factum, the Crown submits that:

With or without s. 119(4) the Crown would not have obtained and
    reviewed the youth record in this case because the appellants claim of
    relevance was unfounded.  Most of the evidence he produced amounted to
    nothing more than vague and unreliable hearsay.  The appellant had access to
    multiple sources of information.  His application failed because none [of]
    those sources revealed any relevant records.  The appellant received notice of
    the existence of the record.  He knew that it was not part of the case to
    meet.  He had access to the boy against whom he believed an allegation had been
    made.  That boy said nothing to suggest that his contact with police terminated
    because of recantation or proven falsehood.  The appellant had access to the
    complainant and her parents at the preliminary inquiry.  Their evidence did not
    suggest that the complainant had made a complaint to the police at all, let
    alone a demonstrably false or recanted one.

The only reliable evidence revealed nothing more than a father
    who had found out about something that was not that serious and had
    brought it to the attention of the police.

[54]

I accept, as accurate, that description by the Crown
    of the state of the record before the trial judge. I would add
that the
    trial record also discloses that as
the argument
    of the applications unfolded, it became apparent that the EJM record was in
    respect of someone whom the defence believed to be X, not the complainant as
    the appellant initially submitted. Given the state of the record, it was open
    to the trial judge to not first dispose of the appellants constitutional
    challenge to
YCJA
s. 119(4). The
    appellant failed to demonstrate that the EJM record contained potentially
    relevant material. The Crowns duty to inquire and assess the material for
    relevance was not triggered. In those circumstances,
YCJA
s. 119(4) did not operate to deprive
the
    appellant of an assessment of the relevance of the record by the Crown, so the
    trial judge did not err by proceeding to first consider the production remedy
    sought by the appellant under the
Mills
regime, instead of determining
    the appellants constitutional challenge.

[55]

As mentioned, the appellant does not challenge the
    trial judges first-stage
Mills
regime analysis. In that analysis, the trial judge considered the sufficiency
    of the evidentiary foundation laid by the appellant in support of his assertion
    that the reason no charges were laid against X was because the complainant had
    recanted her allegations. The trial judge concluded that suggestion was
    nothing more than unfounded speculation: at para. 32.

[56]

On the facts of this case, the trial judges sequence
    of decision-making was not unfair to the appellant. As the trial judge pointed
    out, the evidence filed by the appellant on his s. 278.3 application disclosed
    that defence counsel had communicated with X, and it was open to the defence to
    obtain evidence from X regarding the details of the event that may have
    involved the complainant and then use that evidence in support of the third party
    records application: at paras. 35 and 36. In those circumstances, the appellant
    was not put in a catch-22 situation.

Conclusion

[57]

Accordingly, given the specific facts of this case,
    the trial judge did not commit reversible error by first determining the appellants
    s. 278.3 application. As that is sufficient to dispose of the conviction
    appeal, it is not necessary to consider the appellants constitutional
    challenge to
YCJA
s. 119(4) and
    the interpretation of that section proffered by the Crown as
Charter
-compliant.
[2]

PART III: SENTENCE
    APPEAL

[58]

The
    trial judge imposed a global sentence of three years imprisonment, apportioned
    2.5 years to the sexual interference conviction and six months to the uttering
    death threats conviction.

[59]

The appellant submits that the sentence was based on three
    errors.

[60]

First, the appellant argues that the trial judge erred
    in concluding that the appellant was in a position of trust and authority by
    virtue of his position at the church and treating that circumstance as an aggravating
    factor.

[61]

I see no error. The appellant was the son of the
    pastor of the church attended by the complainant and her parents, where he was involved
    in some activities involving the youth of the congregation. The complainant got
    to know the appellant through church activities. As the trial judge noted, the
    appellant groomed the complainant  who was 12 years his junior  by letting
    her think that he was her boyfriend, sent her sexually explicit text messages,
    and took advantage of her crush on him to obtain sexual gratification. In
    those circumstances, the trial judge made no error in characterizing the
    relationship as one of trust within the meaning of s. 718.2(a)(iii) of the
Criminal
    Code
.

[62]

Second, the appellant submits that at para. 28 of his reasons
    for sentence, the trial judge erroneously treated as an aggravating factor the
    lack of any evidence that the appellant was suffering from a psychological
    disorder. I do not read that part of the reasons for sentence as making that
    suggestion. Instead, the trial judge merely observed, quite accurately, that in
R. v. D. (D.)
(2002), 58 O.R.
    (3d) 788 (C.A.) this court stated, at para. 40, that the absence of evidence
    that an accused was suffering from some psycho-sexual disorder did not
    translate into a mitigating factor in his favour.

[63]

Finally, the appellant contends that the trial judge
    erred by imposing a six-month custodial sentence on his conviction for uttering
    death threats. Instead, a fit sentence would have been a suspended sentence of
    one year, given the appellants youth and lack of a prior record.

[64]

I see no error. The appellant, who was 12 years older
    than the 14-year old complainant, sent private Facebook messages to her that
    contained death threats. When the complainant started to tell people at their
    church that she was dating the appellant, he repeatedly told her to stop doing
    so. Ultimately, the appellant sent the complainant a message on October 8, 2012
    at 21:46 that stated:

Doooo u have any idea how piss I am

I swear if u dont go back and fix it I will kill u will be
    dead and I will be jail for real

[65]

When
    the complainant replied that she had shown the appellants father their messages
    discussing sex, the appellant said:

We dont talk on hook [complainants name] I swear if u dont
    clear my name I will kill u and Im not joking cuss this is not funny seriously
    I dont no whats making u do this but I promise if u dont I will kill u

[66]

Against
    the gravity of that language, the trial judge gave proper consideration to
    mitigating factors: the appellants good prospects for rehabilitation; his lack
    of a prior record; and the complainants evidence that she did not take
    seriously the appellants threats that he would kill her if she told her parents
    what he had done.

[67]

The resulting sentence of six months for uttering
    death threats was not manifestly unfit in the circumstances. Nor was the global
    sentence of three years.

PART IV: DISPOSITION

[68]

For the reasons set out above, I would dismiss the appeal
    from conviction. I would grant leave to appeal the sentence but dismiss the
    sentence appeal.

Released: DB NOV 21 2019

David Brown J.A.

I agree. C.W. Hourigan J.A.

I agree. David M. Paciocco J.A.





[1]

By contrast, in
R. v. Bottineau
(2005), 32 C.R. (6th)
    70 (Ont. S.C.), a case relied upon by the appellant that involved charges of
    first degree murder, occurrence reports formed part of the investigation: at
    para. 71.



[2]

In the Crowns submission, s. 119(4)
    applies only to records that document the use of EJM in relation to an
    identified young person, but does not apply to parts of the investigative file
    that would not identify a young person as having been the subject of EJM:
    see
R. v. R.L.
, [2007] O.J. No. 5293. The Crown supported this
    interpretation by reference to: the plain language of the provision, which
    refers to records kept [] in respect of extrajudicial measures []
used
    in respect of a young person
 (emphasis added); the structure of the
YCJA
,
    in which s. 119 creates exceptions to the access provisions in s. 118 but does
    not apply to records which s. 118 would not capture; the purpose of the
YCJA
,
    which seeks to protect young offenders, not complainants or witnesses; the
    avoidance of absurd results that might flow from a more expansive
    interpretation of s. 119(4); the legislative history of the
YCJA
,
    as a successor to the
Young Offenders Act
, R.S.C., 1985, c. Y-1,
    repealed, 2002, c. 1, s. 199; and the principle that Parliament is presumed to
    pass legislation consistent with the
Charter
.


