R. v. J. (E.B.) (Litigation Guardian of)
Her Majesty the Queen, Respondent and S.C., A.C., L.D., J.G., B.M., R.R., J.S.
(Young Persons), Respondents and E.B.J. and C.J., Minors by Their Litigation
Guardian, M.J., M.J. Personally and J.J., Applicants
Ontario Superior Court of Justice
Heard: January 25, 2002
Judgment: February 11, 2002
Stacey Young, for Her Majesty the Queen
Ian Paul, for S.C.
Stephen Ault (Agent), for L.D., B.M., A.C. (Agent), R.R., J.S.
Paul Lemieux, for J.G.
John Schuman, for Applicants
APPLICATION for order quashing judgment dismissing application for production of criminal files of young persons for use in civil trial and for order compelling production.
1 The Applicants seek an order of mandamus with certiorari in aid of an order quashing the decision of a justice of the Ontario Court of Justice and ordering the criminal file with regard to the Young Persons be produced to their civil counsel for use in a civil action that arises from the same set of occurrences as the criminal proceedings against the Young Persons.
2 As a result of these occurrences, the applicant, E.B.J. (“J.”), was charged as a young offender with uttering threats (the “J. charges”) and the Young Persons were charged as young offenders with assault on J. (the Young Persons’ charges). The J. charges have been withdrawn and the Young Persons’ trial (except in respect of the Young Person, S.C., whose charges have subsequently been withdrawn) is pending. The civil action involves J. as one of the plaintiffs claiming damages for personal injuries and the Young Persons and others as defendants.
3 Prior to the J. charges being withdrawn and in the preparation of his defence, J.’s defence counsel, Mr. Clayton Ruby, was successful in obtaining disclosure of statements made by the Young Persons to the police. In ordering that disclosure, Justice Renaud of the Ontario Court of Justice further ordered
that no person is permitted to disseminate or communicate any portion of these materials to any person other than what is necessary to properly defend the criminal charges faced by the applicant. For purposes of clarity, these materials shall not be transferred by any means to any party who is not specifically acting on behalf of the applicant in the defence of the above matter. The spirit of this order is to ensure that the applicant be disclosed all relevant materials in the hands of the Crown such that he is able to defend himself of the criminal charges alone, and for no other purpose.
4 Subsequent to Justice Renaud’s order, the J. charges were withdrawn. Also subsequent to that order and just prior to examinations for discovery of the Young Persons in the civil action, the Applicants’ civil counsel applied to Justice MacPhee in the matter of the Young Persons’ charges in the Ontario Court of Justice, under s. 44.1(1)(k) of the Young Offenders Act, for disclosure of the contents of the records in respect of the Young Persons’ charges. The Applicants’ civil counsel (also counsel on this mandamus application) submitted, relying on an affidavit from Mr. Ruby, that the Young Persons’s statements to police in particular were relevant to their being able to be fully questioned at their examinations for discovery.
5 Justice MacPhee dismissed the application and gave reasons for refusing to order disclosure of records from the proceedings dealing with the Young Persons’ charges.
6 Subsequent to Justice MacPhee’s decision, examinations for discovery were held in the civil action and the Young Persons were questioned on their statements to the police. Some of them could not remember what they had said to police and some took the position that Justice Renaud’s order prevented their statements from being used in the civil action.
7 The Applicants now seek relief by way of mandamus in respect of Justice MacPhee’s decision and for disclosure of the Young Persons’ statements to police. The Applicants rely in particular on the principle that the Young Offenders Act and its privacy provisions should not be used as a shield to protect young offenders from civil liability: Smith v. One Young Offender (1986), 57 O.R. (2d) 524 (Ont. U.F.C.). When placed in the context of the Young Persons’ pending trial and the Applicants’ pending civil trial against them, the Applicants are, in effect, requesting disclosure of criminal records from a matter under the Young Offenders Act for use in a directly related civil action, at a time when both trials are pending and, I am informed, the civil matter may reach trial before the criminal.
8 The Applicants have chosen the vehicle of mandamus with certiorari in aid because there is no route of appeal of the orders of Justice Renaud and MacPhee under the Young Offenders Act. The Applicants seek, through certiorari, to have these orders quashed and through mandamus as I understand their application, a disclosure order from this court under section 44.1(1)(k)(ii) of the Young Offenders Act, or, if I misunderstand their application, an order from this court compelling a disclosure order under that section from the Ontario Court of Justice. The grounds for the award of mandamus have been stated in S.A. de Smith, Judicial Review of Administrative Action, 4th ed., J.M. Evans, ed. (London: Stevens & Sons, 1980) at pp. 540-547 as follows:
Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. (p. 540)
The scope of the order of mandamus as a device for securing the performance by inferior courts and tribunals and administrative authorities of their duties to exercise their jurisdiction and discretion is not easy to rationalise or even to set out in a series of formal propositions….One begins with the elementary proposition that courts and tribunals have a duty to determine cases within their jurisdiction and properly brought before them, and that courts, tribunal and administrative bodies in general have a duty to exercise their statutory discretions one way or the other when the circumstances calling for the exercise of those discretions arise. Wrongful refusal to exercise jurisdiction or discretion in such circumstances is a breach of duty redressible by an order of mandamus….it will not issue to order a body how to exercise its jurisdiction or discretion….On the whole this principle has been observed by the superior courts when attempts have been made to induce them to intervene by mandamus to overrule incorrect findings of law or fact by bodies subject to their superintendence. (p. 543)
9 There appears to be a paucity of recent authorities with respect to the grounds for mandamus in criminal law. Counsel have referred me to two cases: R. v. Coughlan, Ex Parte Evans (1969),  3 C.C.C. 61 (Alta. S.C.) and Faber c. Québec (Procureur général) (1987), 38 C.C.C. (3d) 49 (Que. S.C.).
10 In Couglan, mandamus was sought to compel a Magistrate to issue a material witness summons or warrant. The Magistrate had held a hearing and had refused to issue the process sought. Riley, J. reviewed a number of relevant cases decided between 1899 and 1968 and held that mandamus did not lie to compel a Magistrate to issue a summons or a warrant as that was a matter wholly within his discretion. He said, at p. 72:
At all events, the applicant is shipwrecked on the law relating to certiorari and mandamus.
The law respecting the same has been well established over the years and can be summarized on the basis that any inferior Court or board or person may be required to perform his duty if he refuses to do so but, if the duty is performed in any matter judicial in nature, certiorari and/or mundamus will not lie regardless of whether an incorrect decision is reached, and no superior Court can reverse or alter any decision or direct the inferior Court to come to a different decision, save in such exceptional circumstances as prejudice, bias, personal interest, dishonesty or the like.
Coughlan, Police Magistrate, did not refuse to embark on a hearing, but allowed counsel the widest scope in presenting his position, at the conclusion of which the Magistrate reached a decision.
Mandamus cannot lie with respect to the Magistrate performing his duties, as all he is required to do under the Code is hold a hearing, fairly listen to the representatives of the applicant, and then, within the discretion granted to him, come to a determination. The Magistrate cannot be required by mandamus to hold another hearing for he has already properly held one.
Mandamus cannot lie to require the Magistrate to issue a summons or warrant, for such is a matter that is wholly within his discretion. Even if the Magistrate were to make an erroneous determination on the law in exercising that discretion, mandamus cannot lie.
11 In Québec (Procureur général) , the applicant was ordered to stand trial for murder after the preliminary inquiry. At that preliminary inquiry, other persons had testified that it was the witness who was the actual killer. Following the order to stand trial, the applicant swore an information charging the witness with murder. A hearing was held and the justice of the peace issued a warrant, however the Attorney-General entered a stay of proceedings of the murder charge against the witness. The applicant then applied for mandamus to review the decision of the Attorney-General staying these proceedings against the witness. Boilard, J. held, very succinctly, at p. 63:
Since this is not a case of the Attorney-General refusing to exercise his discretion, but rather a case of a decision taken by him which does not satisfy the applicant, mandamus is not available.
He commented on the availability of mandamus as follows at p. 54:
This prerogative remedy is only available in respect of an inferior tribunal, a functionary, or a public body, which refuses to exercise its jurisdiction. As soon as it exercises it, whether rightly or wrongly, to the satisfaction or dissatisfaction of a citizen, this remedy is no longer available: Pépin and Ouellette, Principes de contentieux administratif (administrative law principles), 2nd ed. (1982), p.317:
Mandamus can not however in principle be used to force the Administration to exercise a discretion in a particular way because it is under no obligation to do so. For example, it has been held that this extraordinary remedy is not available to force a municipality to prosecute persons who do not respect its bylaws.
The Parties’ Positions
12 The Applicants submit mandamus is available because Justice MacPhee either did not apply or inappropriately applied the test under s. 44.1(1)(k)(ii) of the Young Offenders Act and, therefore, exceeded his jurisdiction. Section 44.1(1)(k)(ii) allows records to be made available for inspection “…if the judge is satisfied that the disclosure is…desirable in the interest of the proper administration of justice.” In referring to issues of the future admissibility of the Young Persons’ statements to police in their upcoming trial and the principle in the Young Offenders Act of protecting the privacy interest of young persons, the Applicants submit Justice MacPhee was incorrectly applying the test.
13 The Respondents submit that mandamus is not applicable as Justice MacPhee did not fail to exercise his discretion and neither is there a patently obvious error so that there could be said to be either a jurisdictional error or an error of law on the face of the record. Instead, they say, the Applicants are using mandamus to request a review of a discretionary decision.
14 I think it clear that mandamus is not available to the Applicants and that, as in Québec (Procureur général) , this is not a case of Justice MacPhee refusing to exercise his discretion but a case of the Applicants not being satisfied with his decision. Justice MacPhee had the widest of discretions under the Young Offenders Act in being required to decide whether he was satisfied that disclosure was desirable in the interest of the proper administration of justice. He exercised his discretion after a full hearing and he considered and specifically referred to the issues of concurrent criminal and civil actions, the rights of young persons to privacy and anonymity as set out in the Young Offenders Act and the tension created by the existence of such concurrent actions in that the privacy rights and the particular evidentiary rules regarding the admissibility of potentially incriminating statements contained in the Young Offenders Act might not have the same safeguards applied to them in the civil action as are mandatorily required in the criminal action. He also considered and specifically referred to issues of urgency, whether the civil action could be postponed and concluded that the civil action would not be unduly prejudiced by the failure to disclose the documents.
15 In considering all of these factors, Justice MacPhee was exercising his discretion under the section requiring him to consider what was desirable in the interest of the proper administration of justice. Mandamus is not available in these circumstances to allow a review of how he exercised his discretion or to allow this court to exercise its own discretion.
16 The application is, therefore, dismissed. The Respondents in their pleadings have requested costs. If the parties cannot otherwise agree as to costs, brief (a maximum of two pages for each party) written submissions as to costs may be submitted to me before March 1, 2002.
Allegation of Breach of Justice Renaud’s Order
17 The Respondents, in their pleadings and submissions at the hearing, have alleged that Mr. Ruby’s affidavit and certain comments attributed to him in the Applicants’ materials that were also before Justice MacPhee, breached Justice Renaud’s non-disclosure order so that the Applicants should not now have mandamus or certiorari available to them to obtain disclosure, in effect, flowing from a breach of a court order.
18 It is not necessary to decide this allegation of breach of a court order, given my reasons for dismissing the mandamus application on other grounds. I do, however, agree with Mr. Ruby in his submissions submitted to this court after the hearing of the mandamus application, that before an allegation of breach of a court order is made by one member of the Bar against another, the member against whom the allegation is to be made should be given notice so as to be able to appear and respond. This, I understand, was not the case when this allegation was made before Justice MacPhee and nor was it the case in the mandamus application before me. Notice is more than a matter of courtesy in these circumstances. It should be mandatory given the seriousness of the allegation and the potential it carries for professional consequences. On this basis alone and although not essential to the determination of the mandamus application, this allegation of breach is rejected for lack of notice.