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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Ontario Court of Justice

Date: 2023 01 16 Court File No.: Scarborough 14-Y30158

Between:

HIS MAJESTY THE KING

— AND —

S.S., a young person

Before: Justice R. Wright

Heard on: January 16, 2023 Reasons for Judgment released on: January 17, 2023

Counsel: J. Hanna and A. McPhedran, for the Crown A. Monaco and M. Hayworth, for the accused S.S.

WRIGHT J.:

[1] This is an application by the Crown pursuant to s. 123 of the Youth Criminal Justice Act (“YCJA”) for access to youth records in relation to S.S. I granted the application on January 16, 2023 and indicated I would release written reasons to follow. These are my reasons.

[2] S.S. is now an adult who is 26 years old. On Nov. 1, 2022, he was found guilty of manslaughter and reckless discharge of a firearm with intent and is currently awaiting sentence on those matters in the Superior Court of Justice. The circumstances of those offences involve S.S. firing a handgun four times while in a parking lot in Scarborough. One of the shots fired by S.S. struck the victim in the back, killing him. Two further shots fired by S.S. entered a vehicle where the second victim was seated: his shoulder was grazed by one of those bullets. The shooting occurred at a social gathering following an argument between S.S. and the deceased. The date of these offences was Sept. 19, 2019.

[3] The Crown brings this application before me as a judge sitting as a Youth Court judge pursuant to s. 123 of the YCJA, seeking the release of Court records for the purpose of assisting the Superior Court in sentencing S.S.

Procedural Background

[4] In support of its application, and with notice to S.S. and his counsel Adele Monaco and Michael Hayworth, the Crown provided the Court with copies of:

(1) Youth Court Information 14-Y30158 relating to S.S. which was disposed of on Oct. 27, 2014;

(2) Youth Court Transcript of sentencing proceedings, Oct. 27, 2014; and

(3) Youth Court Transcript of guilty plea proceedings, July 23, 2014.

[5] These Court records had been previously obtained by the Crown and disclosed to the defence in Aug. of 2020 when they were within the access period under s. 119 of the YCJA. That access period expired on Oct. 26, 2020.

[6] S.S.'s sentencing hearing is scheduled to proceed Jan. 19, 2023, before Nakatsuru J. at the Superior Court of Justice in Toronto.

The Legislative Provisions and Case Law

[7] The YCJA contains a comprehensive scheme designed to carefully control access to youth records. Sections 117 to 129 of the YCJA deal with the time frames when records can be disclosed, to whom they can be disclosed, and to what extent. After a certain period, youth records become presumptively unavailable, and, in some circumstances, the records must be destroyed. When the time limitations for access have expired, the only method of obtaining access to youth records that have not been destroyed is through an order obtained from the Youth Court pursuant to s. 123 of the YCJA.

[8] Section 123 (1) reads:

A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person,

(a) if the youth justice court judge is satisfied that

(i) the person has a valid and substantial interest in the record or part,

(ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice, and

(iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province; or

(b) if the youth court judge is satisfied that access to the record or part is desirable in the public interest for research or statistical purposes.

[9] In analyzing the access to records provisions of the prior Young Offenders Act (“YOA”) the Supreme Court of Canada explained the need for confidentiality of youth records in Re F.N., 2000 SCC 35, [2000] 1 S.C.R. 880, [2000] S.C.J. No. 34 at para. 14:

Stigmatization or premature “labelling” of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker, may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence.

[10] The court in F.N. also held that the scheme of young offender legislation does not attempt to achieve rehabilitation of the young offender at the expense of public safety.

[11] In R. v. D.L.C., [2002] N.J. No. 51, Gorman J. concluded that the principles of non-stigmatization of young persons lost much of their force when the young person re-offended. He found that an absolute prohibition on access to expired records based on encouraging rehabilitation would be nonsensical where an offender continued to commit further offences, especially where he re-offended as an adult. Gorman J. explained that the protections offered by the Act would not always shield individuals who went on to engage in further criminal activity as an adult. This reasoning was adopted as equally applicable to the YCJA by Borenstein J. in R. v. B.S., 2010 ONCJ 628 at para. 12.

[12] Consistent with the need to balance the competing interests of a young person's right to not be stigmatized by youthful offending and public safety, the access provisions under the YCJA (and the YOA before it) have been successfully invoked to permit:

• disclosure of a Crown witness' youth court record in order to allow the accused to make full answer and defence;
• access to an accused's youth court record for sentencing purposes;
• access to an accused's youth court record for bail purposes;
• access to an accused's youth court record for use on an assessment and hearing for a dangerous offender designation;
• access to an accused’s youth court record for use in a similar fact application; and
• access to an accused’s youth court record to assist in proving that an accused was a member of a criminal organization.

[13] In this case, there is no dispute that the Crown has “a valid and substantial interest” in the records in order to ensure that an appropriate sentence is imposed on S.S. See the comments of Dickson J. in R. v. Gardiner, [1982] 2 S.C.R. 368 at p. 414:

It is a commonplace that the strict rules that govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. ... The judge traditionally has wide latitude as to sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime.

Application

[14] The materials that the Crown seeks are Court records under s. 114 of the YCJA. They disclose a finding of guilt for the offence of assault causing bodily harm, and outline the facts S.S. admitted in that proceeding, which include the use of a weapon (although not a firearm). Ms. Monaco concedes, and I am satisfied, that these materials are ones in which the Crown has a valid and substantial interest for the purpose of the outstanding sentencing hearing of S.S. in the Superior Court. In particular, since this matter was a serious violent crime in which a weapon was used, the materials are very relevant to issues of the appropriate sentence and public safety.

[15] The disclosure of these Court records is not otherwise prohibited.

[16] The application then turns on whether access to the records is necessary in the interest of the proper administration of justice. This requires a balancing, which includes a consideration of privacy and the potential relevance of the records in question: See S.B. v. N.B., [2005] O.J. No. 1411 at paras. 42, 46 and 49, where the Ontario Court of Appeal noted that the scheme of the Act requires different treatment for different documents such as medical reports even during the access periods. Therefore, issues such as the nature of the record, the privacy concerns of the young person, and the importance of the record to the person seeking access must be considered.

[17] The records sought here are Court records. They include a youth information and the transcripts of S.S.'s guilty plea and sentencing. They do not contain any sort of additional private information, such as might be contained in medical records or even a pre-sentence report. They disclose the facts of the offence that he pled guilty to, his admission of those facts and guilt, submissions on sentence, and some personal details such as his plans for school and some information about his family. The transcript of the sentencing proceeding of Oct. 27, 2014, also details the conditions, including those aimed at rehabilitation, that were made as part of the youth sentence that was imposed.

[18] The privacy concerns of S.S. in these records are clear. They disclose his offending as a young person, as well as some detail about his family. However, I am of the view that these interests are lessened given his re-offence as an adult for the very serious charges now awaiting sentence. There seems very little risk that S.S. would be stigmatized on the basis of his YCJA records for an offence that is significantly less serious than that for which he will now be sentenced as an adult.

[19] Finally, the importance of record to the Crown seeking access for the sentencing hearing is quite high. A criminal sentencing hearing, relating to public safety and the fashioning of a fit and appropriate sentence for a specific person, requires that the sentencing court have as much information as possible. In these circumstances, a complete record of his prior youth dispositions in relation to past violent offences with a weapon is critical to an understanding of his moral blameworthiness, and the progress that he made or has not made as it relates to rehabilitation.

[20] On balance, I am satisfied that it is necessary that the records be available to the Crown in the interest of the proper administration of justice for the purpose of the sentencing hearing. As I indicated in my oral comments on January 16, 2023, my decision as a Youth Court judge to grant access to these records does not touch on their ultimate admissibility or probative value at the sentencing hearing.

Conclusion

[21] The copy of redacted Court records (removing references to other young persons) is provided to the Crown, who will disclose them to the defence. These records may be retained by each of them and will be safeguarded by them and anyone assisting them as confidential documents. The documents will only be used or copied for the purpose of the outstanding sentence proceedings against S.S. in Superior Court, and can be provided to the sentencing court and the clerk of that court. This court has retained a copy of the documents (both vetted and unvetted) as exhibits.

Released: January 17, 2023 Signed: Justice R. Wright