Her Majesty The Queen v. I.M.
COURT FILE NO.: YC-14-613 DATE: 20190213
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN B. McGuire and D. D’Iorio, for the Crown Respondent
- and -
I.M. A. Herscovitch and T. Cass, for the Applicant Applicant
HEARD: February 12, 2019, at Brampton
RULING ON APPLICATION TO ALLOW CROSS-EXAMINATION OF A CROWN WITNESS ON A YCJA RECORD
This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.
André J.
[1] Defence counsel brings an application for a court order permitting him, pursuant to s. 12 of the Canada Evidence Act, to cross-examine a Crown witness on his previous conviction under the Youth Criminal Justice Act (YCJA), on the ground that it is necessary to enable the accused to make full answer and defence. The Crown opposes the application on the ground that the time period set out in the YCJA permitting cross-examination on a youth record has long expired.
BACKGROUND FACTS
[2] I.M. is charged with the first degree murder of S.T. during a home invasion-style robbery on January 24, 2011. It is alleged that I.M. was involved in the unlawful confinement and fatal stabbing of S.T. during the robbery, the object of which was to steal four shotguns that S.T. was rumoured to have. The Crown alleges that following the robbery, I.M. advised the witness of his involvement in the robbery and death of S.T.
YOUTH RECORD OF PROSPECTIVE WITNESS
[3] The young person, who is now an adult, was convicted on March 22, 2010 of the offence of unauthorized possession of a prohibited or restricted firearm.
[4] He received a six month deferred custody sentence and twelve months probation.
[5] The Crown proceeded summarily. The expiry date of the disclosure of the record is September 22, 2014, or three years following the expiry of the sentence.
ANALYSIS
[6] This application involves the intersection of two competing interests namely, the rehabilitation of young persons and their ultimate re-integration into society and the right of an accused to make full answer and defence to criminal charges. The Crown opposes the application based on the former while the defence seeks disclosure of the record based on the latter.
THE LAW
[7] Section 12 of the CEA provides that a witness may be questioned as to whether the witness has been convicted of any offence, excluding any offence designated as a contravention under the Contravention Act, but including such an offence where the conviction was entered after a trial on an indictment.
[8] Section 82 of the YCJA provides in part that subject to section 12 of the CEA, if a young person is found guilty of an offence … or the youth sentence, or any disposition made under the Young Offenders Act (YOA) … has ceased to have effect … the young person is deemed not to have been found guilty or convicted of the offence.
[9] Section 119 (1) of the YCJA provides that:
[F]rom the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record kept under section 114, and may be given access to a record kept under sections 115 and 116:
(q) an accused or his or her counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer and defence;
(s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is
(ii) desirable in the interest of the proper administration of justice.
[10] Section 119 (2) provides that:
The period of access referred to in subsection (1) is
(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;
[11] Section 128 (1) provides that:
Subject to sections 123, 124 and 126, after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.
[12] Section 123(1)(a)(ii) provides that:
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
(ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice…
APPLICABLE CASELAW
[13] There are two competing lines of authority concerning the propriety of disclosing a young person’s criminal record for the purpose of making full answer and defence. In R. v. Sheik-Qasim, [2007] O.J. No. 4799 (S.C.J.), Molloy J. dismissed a defence application for release of a young person’s record after the expiration of the access periods in s. 119(2)(g) of the YCJA, for cross-examination purposes. The court relied on the provisions under s. 128 of the YCJA to conclude that the emphasis placed in the YCJA on the rehabilitation and re-integration of young persons into the society took precedence over the accused’s right to make full answer and defence. Molloy J. concluded at para. 22 that:
To permit cross-examination on confidential information protected under the YCJA, would be to thwart the clear intention of Parliament, which was to have the use of such information controlled by the YCJA.
[14] Molloy J.’s decision in Sheik-Qasim has been followed in R. v. Kanhai, [2010] O.J. No. 3244, at para. 10; and R. v. Hankey, [2008] O.J. No. 5267.
[15] The case of Sheik-Qasim however, is distinguishable from the instant case in two important respects. First, Molloy J. dismissed the defence application for three reasons, two of which are as follows: i) “only a youth court judge has jurisdiction to order production of records under the Act;” and ii) “because complying with the spirit of the legislation requires that if the records themselves are not subject to production under the Act, then the information cannot be used either.”
[16] These hurdles do not exist in this case. I have the required jurisdiction as a youth court judge to order production of the records. Indeed, I made such an order with the consent of the Crown.
[17] Furthermore, Molloy J. noted at para. 22 that “if I cannot order production of the record, it would be contrary to public policy for me to permit the substance of the record to be used.” In this case, the contrary is true. Given that I have ordered, on consent, production of the record, it would be anomalous not to permit the substance of the record to be used.
COMPETING AUTHORITIES
[18] In R. v. U.(D.A.), 2008 NSSC 338, the Nova Scotia Supreme Court held that an accused should be permitted to cross-examine a witness on his or her youth record pursuant to s. 12 of the CEA irrespective of whether the period set out in s. 119 of the YCJA has expired. The court essentially held that the right to make full answer and defence by challenging the credibility of a witness on his or her youth record supersedes the need to rehabilitate and protect the privacy of a young person who has run afoul of the law. The court also noted in U.(D.A.) that by virtue of s. 123 of the YCJA, the legislature did not impose an absolute bar against disclosure of the youth record of a witness after the expiry dates set out in s. 119 of the Act.
[19] In my view, the proper administration of justice justifies allowing the defence to cross-examine the witness on his youth record for the following reasons:
The accused in this case is charged as a young person and is facing a very serious charge;
The witness is a very important witness to the Crown’s case against the accused and should be subject to a thorough cross-examination in order to protect the accused’s rights to make full answer and defence. As noted by Cromwell J.A. (as he was then) in R. v. Hart (1999), 1999 NSCA 45, 135 C.C.C. (3d) 377 (N.S.C.A.), at para. 104, “the more important the evidence to the prosecution’s case, the more reluctant the trial judge should be to allow it to be given without full cross-examination.” The Supreme Court of Canada also noted in R. v. Osolin, [1993] 4 S.C.R. 595 at p. 663 that: “The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence (cases omitted). The Court of Appeal further noted in R. v. Cameron, at para. 20 that:
Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin, supra, at p. 665.
The witness has already testified about his youth record at the preliminary hearing.
The witness’ privacy is protected given that the proceedings against I.M. is subject to a publication ban pursuant to s. 110 of the YCJA.
As noted in R. v. U.(D.A.), at para. 32:
[T]he plain ordinary meaning of s. 82 of the Y.C.J.A. is that the deeming provision for young persons not to have been found guilty or convicted of an offence is specifically made subject to s. 12 of the Canada Evidence Act.
There is no provision in the YCJA that purports to restrict the right to cross-examine a Crown witness nor the right to do so pursuant to s. 12 of the CEA: see U.(D.A.), at para. 37.
[20] I am mindful that the sole conviction on the witness’ record may not be as significant, in any attempt to impeach his credibility, as a record containing multiple convictions for offences of dishonesty. However, it is up to the jury, with proper instructions, to determine the extent to which evidence of the witness’ youth record impacts its assessment of the credibility of the witness.
CONCLUSION
[21] For the above reasons, the application is allowed.
André J.
Released: February 13, 2019
COURT FILE NO.: YC-14-613 DATE: 20190213 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – I.M. RULING ON APPLICATION TO ALLOW CROSS-EXAMINATION OF A CROWN WITNESS ON A YCJA RECORD André J. Released: February 13, 2019