Criminal Law

Court rules police breached time limit in accessing youth record

By Rob Lamberti, AdvocateDaily.com contributor

Several marijuana-related charges against an Ontario man have been dismissed after his counsel, Toronto criminal lawyer Aliki Yorgiadis, argued police accessed his fingerprints, taken as a youth, outside the legislated time limits of the Youth Criminal Justice Act (YCJA).

Yorgiadis, an associate at Hicks Adams LLP tells AdvocateDaily.com she successfully argued in court that police improperly accessed her client's youth fingerprint record.

And while a judge excluded almost all the evidence the police gathered because of the way the fingerprints were accessed, the trial was still scheduled to proceed in September.

However, earlier this month the Crown did not call any evidence and the charges were dismissed.

The man was charged in 2015 with marijuana-related offences after police lifted a fingerprint off a shirt packet, using that print to confirm his identity as the person they suspected in the incident, Yorgiadis says.

She explains that when a fingerprint is located by police, the discovered print is inputted into the Automated Fingerprint Identification System (AFIS) in order to see if it can be matched to a known print.

After a ‘hit’ came back on AFIS (even though the file was ‘archived’), police then tracked the man's fingerprint by accessing her client's file in their own database when he was an accused youth offender in 2013, Yorgiadis says. Since a youth court judge dismissed those charges, his fingerprint record was deemed inaccessible two months later and off limits to police, she says.

In a Charter of Rights and Freedoms challenge, her client argued his rights under ss. 7 and 8 were breached and he sought an exclusion order on the evidence based on s. 24(2), Yorgiadis says.

Ontario Court of Justice Judge Theo Wolder ruled earlier this year police could not delve into the accused's file beyond the two-month limit after youth charges were dismissed.

Yorgiadis says the use of youth records by police in her case is outlined in s. 119(1)(g) and 119(2)(c) of Part 6 of the YCJA, limiting access to records with varying time periods depending on the outcome of individual cases.

She says s. 119 lists a dozen possible dispositions, each with a different time period, and in her case, police were only allowed to probe her client's file for two months before it was not to be accessed.

However, the Crown argued police have a five-year period of access to the records, basing its argument on s. 115(1), 120(2) and 120(3), she says.

"I find that in this case, the Crown has failed to provide any authority in the YCJA that authorizes the otherwise prohibited access to the defendant's fingerprint record more than two months after the initial charges against him were dismissed," Wolder wrote in his decision.

Wolder said the breach of the accused's Charter rights stem "from a serious systemic institutional indifference of the provisions of the Youth Criminal Justice Act," and that access to information revealing a young person's identity is finite.

He excluded all evidence found subsequent to accessing his fingerprints and to his arrest, including the fingerprint evidence itself.

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