WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published. — (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.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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 File and Parties

Court File No.: HAMILTON 15-Y6667

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

L.N.H.C.

Before: Justice P.H.M. Agro

Heard on: February 3, 2016

Counsel:

• Michael Fox, for the Crown
• Christopher Hicks, for the accused L.N.H.C.
• Ivana Denisov, for the accused L.N.H.C.

AGRO J.: Reasons for Ruling

Introduction

[1] Initially this was a Crown application pursuant to section 123(1) of the Youth Criminal Justice Act (hereinafter referred to as "the YCJA" or "the Act") for an order allowing the Superior Court of Justice, the Attorney General and his agents, criminal defence counsel retained by Mr. L.N.H.C., the Solicitors General of Ontario and Canada and the Parole Board of Canada, access to all Youth Records kept pursuant to sections 114 to 116 that relate to Mr. L.N.H.C.

[2] With notice to counsel for Mr. L.N.H.C., the Crown has since amended its application to seek an order for release of Youth Records to the Crown for these purposes:

1. For use in two separate prosecutions of the respondent in the Superior Court of Justice:

• The first in relation to four charges of attempted murder and one count of aggravated assault
• The second in relation to a charge of first degree murder

As determined to be admissible by the presiding Justice:

• A. For the purpose of cross-examining the accused on his record should the accused testify
• B. For use of the record in sentencing if convicted
• C. For use of all records by a psychiatrist, psychologist or other professional engaged in assessing the accused and similarly by the court in reviewing such assessment

2. To send to the Parole Board of Canada for use in any assessment of the accused for suitability for conditional release.

[3] The first of those trials is scheduled for eight months hence. There is some suggestion in the materials filed that there have been discussions between counsel about a defence of not criminally responsible.

Background

[4] On 4 September 2011 the accused committed the first degree murder of George Burnett, for which he was convicted on 24 August 2015. He is now serving a sentence of life imprisonment with parole ineligibility for twenty-five years for that offence.

[5] According to the affidavit in support of this application certain records were collected in the course of investigation on that charge. They include the CPIC print out of findings of guilt under the YCJA, a pre-sentence report, a YCJA s. 34 assessment, a psycho-vocational assessment, a psychological assessment, case notes, programming notes and "other Ministry of Children and Youth Services records."[1]

[6] The Youth Record for findings of guilt commences on 6 January 2003, to 29 March 2005. The offences include 2 counts of assault simpliciter, two counts of assault with a weapon, one count of assault of a peace officer, one count of being unlawfully at large, 2 counts of counselling a robbery not committed, one count of counselling an extortion not committed, one count of counselling a break and enter not committed and one count of counselling a murder not committed.

[7] By the combined operation of subsections 119(2)(g) and (j) the access period for those records expired on 13 February 2013.

[8] Had Mr. L.N.H.C. been convicted of the Burnett murder before 13 February 2013, access to his Youth Records would have been permitted as a record of an adult by operation of subsection 119(9) of the YCJA. Their use by the Crown in any proceeding against L.N.H.C. as an adult would have been subject only to any ruling as to admissibility by the trial judge.

Purpose of the Restrictions on Access

[9] The restrictions on access to Youth Records are intended to reflect the principles of "limited accountability" and "protection of the privacy" of youth that are in section 3 of the Act, and thereby to minimize the stigmatization of youths and increase the likelihood of their rehabilitation.

[10] Those principles are to be balanced however against the interests of society in being protected against unlawful activity by young persons, particularly those who would reoffend as adults, the public interest in effective law enforcement and the right of any accused to make full answer and defence. Hence the availability of an application of this nature to a Youth Court Justice, who has exclusive jurisdiction in the matter.[2]

[11] In balancing the competing interests, access has been granted to a Crown witness' youth court record in order to allow the accused to make full answer and defence: see R. v. Strain, 91 C.C.C. (3d) 568; to an accused's youth court record for sentencing purposes: see R. v. V.A.H. (unreported decision of Auxier, P.C.J., 24 June 1993, British Columbia Youth Court); to youth records of an accused person that included investigative evidence and information: see R. v. C.F., [2005] O.J. No. 3708; to police and Ministry of Children and Youth Services records, including medical reports and assessments, for use in a Superior Court sentencing including the appropriateness of a dangerous or long term offender application: see R. v. P.A.D., [2008] O.J. No. 567; to records to a youth court record for consideration on a bail hearing: see R. v. J.K., [2009] O.J. No. 4884; and to records including court transcripts and exhibits, pre-sentence reports, police records and medical reports to determine if a similar fact application could be brought respecting new charges as an adult: see R. v. S.J.P., [2014] O.J. No. 3903.

Criteria and Grounds for Access

[12] The relevant criteria for access[3] are these:

1. Does the Crown have a valid and substantial interest in the record?
2. Is access necessary in the interest of the proper administration of justice?
3. Is disclosure prohibited under any other federal or provincial legislation?

[13] Any material in support of such application should clearly set out the records sought and the purpose for which they are intended to be used relevant to those criteria and their proposed use.

[14] In R. v. P.A.D., supra, the court followed a procedure in which the Crown subpoenaed the records sought, which were sealed and deposited with the Court. Copies of the sealed materials were made for both parties and the court for the purpose of submissions on the application.

[15] That procedure allowed the court and counsel to review the records in light of the criteria for access.

[16] This court does not have that advantage. There is only broad stroke reference to the records sought in the Crown application.

[17] Certainly the Crown, in fulfilling its obligation to Canadian society in the various prosecutions against Mr. L.N.H.C., has a valid and substantial interest in the record in aid of those prosecutions. The answer to the first criteria for access is in the affirmative.

[18] As for the necessity of access in the interest of the proper administration of justice, I find the Crown's application to be premature.

[19] While the record of offences might be useful for cross-examination of Mr. L.N.H.C. at trial and at sentencing should he be convicted, or alternatively in aid of any assessment in determining the issue of criminal responsibility, his counsel has yet to decide whether Mr. L.N.H.C. will testify and no decision has been made about an NCR defence.

[20] With the onus of proof resting with the Crown at trial, there is no requirement that the defence disclose decisions on those matters at this time, see: R. v. Chaulk, [1990] 3 S.C.R. 1303.

[21] Nor is there any necessity to order access for Parole Board purposes at this time. Even if Mr. L.N.H.C. were found not guilty on all of the matters for which he is awaiting trial, it will be two and a half decades before parole eligibility becomes a consideration.

[22] The answer to the second criteria for access is no.

[23] Neither counsel has raised any argument on the third criteria, but given my finding on the second issue it requires no comment.

[24] The Crown application is therefore dismissed but without prejudice to further application, on abridged notice to Mr. L.N.H.C. and his counsel should the defence disclose that Mr. L.N.H.C. will testify at trial, or should the defence disclose that it will raise the defence of not criminally responsible at trial, or should Mr. L.N.H.C. be found guilty at trial for sentencing purposes, or should the Crown wish to consider a long term or dangerous offender application, or should the Parole Board require same for any stated purpose relevant to its function and duties respecting Mr. L.N.H.C. at some later date.

Dated at Hamilton, this 15th day of March, 2016.

Released: March 15, 2016

Signed: Justice P.H.M. Agro

Footnotes

[1] Affidavit of Leza Khoshaba, para. 4, sworn 15 September 2015

[2] s. 123 YCJA; S.L. v. N.B., [2005] O.J. No. 1411

[3] s. 123 YCJA