



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH
CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(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;

(b) in a case where the information relates to a
    young person who has received a youth sentence for a violent offence and the
    youth justice court has ordered a lifting of the publication ban under
    subsection 75(2); and

(c) in a case where the publication of the
    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.

111(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.

138(1)          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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the Young Offenders Act,
    chapter Y-1 of the Revised Statutes of Canada, 1985,

(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.




COURT OF APPEAL FOR ONTARIO

CITATION: Toronto (Police Service) v. L.D., 2018 ONCA 17

DATE: 20180112

DOCKET: C62728

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Chief of
    Police

Toronto
    Police Service

Appellant (Applicant)

and

L.D., a young person

Respondent (Responding Party)

and

Steven Mignardi

Respondent (Cross-Applicant)

Gail Glickman, for the appellant, Chief of Police Toronto
    Police Service

No one appearing for the respondent, L.D.

Joanne Mulcahy, for the respondent, Steven Mignardi

Jane Stewart and Mary Birdsell, for the intervener,
    Justice for Children and Youth

Miriam Saksznajder and Carla Goncalves, for the
    intervener, Office of the Independent Police Review Director

Margaret Bojanowska, for the intervener, Criminal
    Lawyers Association

Deborah Krick, for the Attorney General (Ontario)
    (written submissions only, by invitation of the Court)

Heard: November 7, 2017

On appeal from the judgment of Justice E.M. Morgan of the
    Superior Court of Justice, dated August 31, 2016, allowing an appeal from the
    amended judgment of Justice M.L. Cohen of the Ontario Court of Justice, dated
    September 10, 2015.

MacPherson J.A.:

A.

INTRODUCTION

[1]

An unusual preliminary issue has arisen on the appeal: should the appeal
    be quashed because of a jurisdictional issue?

[2]

What makes the issue unusual is that there is no question that this
    court has jurisdiction to hear the appeal from the judgment of the Superior
    Court judge. However, it is not clear that the Superior Court judge had
    jurisdiction to hear an appeal from the decision of the Ontario Court of
    Justice judge, sitting as a youth justice court judge.

[3]

For the reasons set out below, I have determined that there was no right
    of appeal from the decision of the youth justice court to the Superior Court of
    Justice.  The Superior Court did have jurisdiction to review the decision of
    the youth justice court by way of a
certiorari
application under part
    XXVI of the
Criminal Code
, which also provides for a further appeal to
    this court. It would therefore be open to this court to treat the decision of
    the Superior Court judge as if it were made on an application for
certiorari
and to determine this appeal despite the error in the Superior Court. However,
    I have decided that the court should decline to do so in the circumstances of this
    case.

B.

FACTS

(1)

The case in the Ontario Court of Justice (sitting as a youth justice court)

[4]

Constable Steven Mignardi of the Toronto Police Service (TPS) was
    charged under the
Police Services Act
, R.S.O. 1990, c. P. 15 (
PSA
)
    with discreditable conduct in relation to the alleged assault of L.D., a young
    person who had been arrested by the TPS. The matter has been referred to a
    disciplinary hearing.

[5]

In the context of this administrative proceeding, the TPS brought an
    application for an order under s. 119(1)(s) of the
Youth Criminal Justice
    Act
, S.C. 2002, c.1 (
YCJA
) allowing access to the police
    records from the evening in question.

[6]

Constable Mignardi brought a cross-application under ss. 119(1)(s) and
    123 of the
YCJA
for access to records in the TPSs possession relating
    to additional incidents where L.D. was investigated, detained, arrested,
    convicted, and/or prosecuted.

[7]

On August 6, 2015, Cohen J. of the Ontario Court of Justice (sitting as
    a youth justice court judge under the
YCJA
) released her decision
    dismissing both the TPS and Mignardi applications. She issued very slightly
    revised reasons on September 10, 2015. Her conclusion was:

I find that the TPS and the officer, have failed to establish a
    valid interest in the section 119 records, or a valid and substantial interest
    in the section 123 records.

I further find that the TPS, and the officer, have failed to
    establish that access to the records is desirable in the interest of the proper
    administration of justice in relation to the section 119 records, or necessary
    in the interest of the proper administration of justice, in relation to the
    section 123 records.

For all of these reasons, I conclude there should be no access
    by the TPS and the officer to the records of LD. The application is dismissed.

(2)

The case in the Superior Court of Justice

[8]

Both the TPS and Constable Mignardi appealed the youth court judges
    decision to the Superior Court of Justice. The TPS cited s. 40(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
) as the basis for the
    appeal. Constable Mignardi cited no statutory basis for his appeal.

[9]

Section 40(1) of the
CJA
provides:

40(1)  If no
    provision is made concerning an appeal from an order of the Ontario Court of
    Justice, an appeal lies to the Superior Court of Justice.

[10]

The
    appeal was heard by Morgan J. of the Superior Court of Justice. In a decision
    released on August 31, 2016, he allowed the appeal. He set aside the decision
    of the youth court judge and ordered the following:

The records sought by Mignardi in his application before the
    youth court judge are hereby ordered to be produced.

Although the appeal judge did not expressly address
    the records sought by the TPS in its appeal, those records were included in the
    records sought by Constable Mignardi.

(3)

The case in the Court of Appeal

[11]

The
    TPS appealed the Superior Court judges decision to this court under s. 6(1)(b)
    of the
CJA
. Facta were delivered, and oral submissions made, by the
    appellant TPS, the respondent Constable Mignardi, and three interveners 
    Justice for Children and Youth, Office of the Independent Police Review
    Director, and the Criminal Lawyers Association.

[12]

During
    the hearing, the court raised the issue of the jurisdiction of the Superior
    Court judge to hear an appeal from the decision of the youth court judge. Some
    of the parties and interveners made brief submissions on this issue.

[13]

Following
    the hearing, the court further considered, and became concerned about, this
    issue. On November 20, 2017, the courts Senior Legal Officer sent a letter to
    the parties, the interveners, and the provincial Crown inviting written submissions
    on the issue. The letter said, in part:

Further to the hearing of this Appeal, the Panel has directed
    that counsel provide written submissions on the issue of whether there was jurisdiction
    to appeal the decision of the Youth Court Judge. In this regard, I draw your
    attention to the case of
R. v. Parker
, 2011 ONCA 819. Counsel are
    asked to consider the impact of that decision on whether s. 40(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43 provided a route of appeal to the
    Superior Court of Justice. Counsel are also asked to make submissions on
    whether this Court should entertain the appeal even if s. 40(1) did not provide
    a right of appeal to the Superior Court of Justice.

[14]

By
    December 11, 2017, the court had received very helpful written submissions from
    the appellant, the respondent, two interveners, and the provincial Crown.

C.

issues

[15]

The
    issues are:

(1)

Does s.
    40(1) of the
CJA
support an appeal to the Superior Court of Justice
    from a decision of a youth court judge made under the
YCJA
?

(2)

If
    the answer to question (1) is No, is there another route to appeal or review a
    decision of a youth court judge to the Superior Court of Justice?

(3)

In light
    of the answers to questions (1) and (2), what should this court do with the
    appeal?

D.

analysis

(1)

Section 40(1) of the
CJA

[16]

The
    TPS concedes that its appeal of the youth justice courts decision to the
    Superior Court grounded in s. 40(1) of the
CJA
was misconceived in
    light of this courts decision in
R. v. Parker
, 2011 ONCA 819. This is
    a fair concession.

[17]

In
Parker
, the appellant (Parker) applied to the Ontario Court of Justice
    for the return of marijuana plants that had been seized under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
). This was a
    stand-alone application under s. 24 of the
CDSA
; there was no related
    prosecution. The application was dismissed and the appellant appealed to the
    Superior Court of Justice. The Superior Court judge held that he could hear the
    appeal under s. 40(1) of the
CJA
. He dismissed the appeal and Parker
    appealed to this court.

[18]

This
    court held that s. 40(1) of the
CJA
did not support the appeal. The court
    said, at para. 19:

[The appeal judge] held that the Superior Court had
    jurisdiction to hear the matter, pursuant to the summary conviction appeal
    provisions in the
Courts of Justice Act
, s. 40.
Amicus
counsel and Crown counsel agree that [the appeal judge] erred in reaching this
    conclusion.  While the interplay between federal and provincial jurisdictions
    in drug cases can be problematic, we are satisfied that the correct
    characterization of a s. 24 application is that it flows out of Parliaments
    criminal law power.
Accordingly, provincial rights of appeal have no
    application
. [Citations omitted; emphasis added.]

[19]

The
    remaining question is whether the
YCJA
, like the
CDSA
, is a
    federal law anchored in s. 91(27) of the
Constitution Act
,
1867
.
    This question has been definitively answered in the affirmative: see
Reference
    re Young Offenders Act (P.E.I.)
, [1991] 1 S.C.R. 252, at pp. 261-62. This
    general answer applies to the records provisions of the
YCJA
: see
L.(S.)
    v. B.(N.)
(2005)
,
196 O.A.C. 320, at para. 60. It follows that
    provincial legislation such as s. 40(1) of the
CJA
cannot create an
    appeal right from an order made under the
YCJA
.

(2)

Another appeal or review route?

[20]

As
    discussed above, s. 40(1) of the
CJA
does not provide for an appeal
    from the decision of a youth court judge relating to the records provisions of
    the
YCJA
. Nor is there any provision in the
YCJA
authorizing such
    an appeal. Is there any other avenue to review the decision?

[21]

The
    appellant and respondent jointly submit that there is a route to review a
    decision of a youth court judge relating to the records provisions of the
YCJA
.
    The route is an application for
certiorari
brought under Part XXVI of
    the
Criminal Code
before a judge of the Superior Court of Justice.

[22]

I
    agree with this submission. The
certiorari
route was confirmed in
Parker
,
    at paras. 20-22. In my view, what this court said about
certiorari
as an
    available review route in proceedings under the
CDSA
applies equally
    to this proceeding under the
YCJA
.

[23]

Section
    784 of the
Criminal Code
provides a right to appeal a decision
    granting or refusing
certiorari
to the Court of Appeal.

(3)

Should this court decide the appeal?

[24]

In
Parker
this court, having determined that the proper route to review the
    Ontario Court of Justice judges decision was a
certiorari
application
    to a Superior Court judge, went on to hear and determine the appeal from the
    Superior Court judges decision on the merits. In doing so, the court said, at
    para. 22:

There is little, if any, disadvantage to a party seeking to
    review a [
CDSA
] s. 24 order having to apply for
certiorari
rather than proceeding by way of appeal. In this province, the reviewing court
    is the same, the Superior Court of Justice. The grounds of review are also the
    same and, one advantage to a party is that an appeal lies to this court as of
    right.

[25]

There
    is no doubt that this court has the jurisdiction to treat the appeal decision
    as a decision made on an application for
certiorari
, and to determine
    the appeal on the merits, as it did in
Parker
. However, after anxious
    consideration, I am of the view that the court should decline to do so. The
    issues and surrounding circumstances in this case strike me as sufficiently
    different from those in
Parker
to justify a more cautious result. In
    articulating the reasons for caution in this case, I can do no better than set
    out the argument on this point made by the intervener Independent Police Review
    Director in its supplementary factum:

While the Director agrees that this appeal is similar in many
    ways to the
Parker
decision, there is one notable and significant
    difference: in
Parker
, the judge in the first instance declined to
    order the return of the marijuana pursuant to the CDSA. On appeal, the Superior
    Court Justice
upheld
the decision of the judge in the first instance,
i.e.
,
    the Superior Court Justice did not find error in the decision of the lower
    court and did not make an order for return of the marijuana seized. The Court
    of Appeal agreed.

In contrast, in the present case, Justice Morgan did
not
uphold the order of Justice Cohen but rather quashed it and ordered production
    of youth records. Had the appeal been brought properly as an application for
certiorari
,
    Justice Morgan could only have quashed Justice Cohens decision and ordered
    access to the records if he found that she had exceeded her jurisdiction in
    denying access, or if her reasons had disclosed an error of law on the face of
    the record. As his reasons considered neither of these two bases, it is
    respectfully submitted that this Honourable Court cannot now properly review
    his decision to determine if he erred in law.

In fact, the Director submits that if this Honourable Court did
    wish to properly consider and determine whether access to L.D.s youth records
    ought to have been granted, this Honourable Court would have to review not
    Justice Morgans decision but rather that of Justice Cohen, to determine if she
    exceeded her jurisdiction or made an error of law on the face of the record. It
    is respectfully submitted that this would be an impossible task on the
    materials presently before the Court, as the written and oral submissions of
    all parties have focused almost exclusively on Justice Morgans decision, not
    that of Justice Cohen. [Emphasis in original.]

[26]

I
    agree with this analysis. The combination of the different results in the two
    courts below, the robust review applied by the appeal judge in overturning the
    decision of the youth court judge (a review that, arguably, went beyond the
    jurisdiction and error of law on the face of the record construct of a
certiorari
review), and the fact that the facta and oral submissions of the parties and
    interveners focussed predominantly on the appeal judges reasons rather than
    those of the youth court judge, means that this court is not well-placed, at
    this juncture, to determine this appeal.

E.

disposition

[27]

Having
    declined to determine this appeal due to the erroneous manner in which the
    appeal proceeded before the Superior Court of Justice, this court cannot allow
    the Superior Court decision to stand. The decision of the appeal judge is set
    aside.  I leave it to the parties to determine what steps, if any, to take in
    light of these reasons.

Released: KNF JAN 12 2018

J.C. MacPherson
    J.A.

I agree. K. Feldman
    J.A.

I agree. Grant
    Huscroft J.A.


