R. v. A.Y.D., 2011 ABQB 590

Court of Queen ’ s Bench of Alberta Citation: R. v. A.Y.D., 2011 ABQB 590 Date: 20110927 Docket: 091470187Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - A.Y.D. and N.R.R. Accused - and - Edmonton Journal, a Division of Postmedia Network Inc. and Canadian Broadcasting Corporation Applicants - and - Her Majesty the Queen, N.R.R. and A.Y.D. Respondents

Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the accused as having been dealt with under the Youth Criminal Justice Act. See the Youth Criminal Justice Act, s. 75(3). No one may publish any information that may identify a person as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act , s. 110(1). _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ I.

Introduction [ 1 ] The two young persons A.Y.D. and N.R.R. were charged with a number of offences including two counts of second degree murder. At trial, a statement made by N.R.R. was ruled to be inadmissible. The charges were subsequently stayed by the Crown. The statement had been previously admitted at the preliminary inquiry. The case has generated publicity. [ 2 ] The Applicants, two members of the media, request access under Section 119(1)(

s) of the Youth Criminal Justice Act , S.C. 2001, c.1 (“ YCJA ”) to the following: 1. The Transcripts of the Preliminary Inquiry (the “Transcripts”); and 2. The video of the interview between Sgt. Kennedy and the Accused N.R.R. which was entered as an exhibit during the Preliminary Inquiry and the subsequent application before Mr. Justice Gill (the “Video”). [ 3 ] A court-ordered publication ban was previously imposed pursuant to s. 517 of the Criminal Code , R.S.C. 1985, c. C-46.

The court order provided that the evidence taken, the information given, the representations made, and the reasons given by the justice in this matter may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. II. Issues 1. Does this Court have the jurisdiction to grant the application? 2. Should access be granted as requested?

III. Analysis 1. Jurisdiction to Grant Application [ 4 ] The Crown raises the issue as to whether or not this Court has jurisdiction to hear this application. The Crown refers primarily to the Ontario Court of Justice case in R. v. Laycock , 2008 ONCJ 29 , 76 W.C.B. (2d) 518. The Law [ 5 ] The following sections of the YCJA are relevant to this issue:

Definitions 2.

(1) The

definitions in this subsection apply in this Act. “disclosure” means the communication of information other than by way of publication. “record” includes any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act. Deemed youth justice court 13.

(2) When a young person elects to be tried by a judge without a jury , the judge shall be a judge as defined in

section 552 of the Criminal Code , or if it is an offence set out in

section 469 of that Act, the judge shall be a judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceeding . No access unless authorized 118.

(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. Persons having access to records 119.

(1) Subject to subsections (4) to (6), from 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: ...

(

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 extentdirected 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 [Emphasis added.] Analysis [6] These provisions appear to provide this court with jurisdiction to hear this application if it is sitting as a youth justice courtfor the purposes of this proceeding. [7] Mr. Justice Doherty in L. (S). v. B. (N.) (2005), (ON CA), 196 O.A.C. 320, 195 C.C.C. (3d) 481 (C.A.)provided a useful

summary of the operation of s. 13 at para. 38 of his decision: 38 Youth justice court is defined in s. 13 of the YCJA. Section 13(1) read in combination with s. 38(3) of the Courts of Justice Act,R.S.O. 1990, c. C.43 makes the Ontario Court of Justice a youth justice court. Sections 13(2) and (3) of the YCJA provide that a superiorcourt (in Ontario, The Superior Court of Justice) is deemed to be a youth justice court where by virtue of the young person's election, ordeemed election, the trial takes place in the superior court either before a judge and a jury or a judge alone.

Sections 13(2) and (3),however, declare that the superior court is a youth justice court only "for the purpose of the proceedings". The "proceedings" referred toin s. 13(2) and s. 13(3) are those that flow from the election or deemed election of trial by judge alone or trial by judge and jury. [Emphasis added.] [8] In this case, the accused elected trial by judge alone. Pursuant to s. 13(2), this resulted in the Court of Queen’s Benchbecoming a youth court for the purposes of the YCJA. Under s. 13(2), this court is deemed to be a youth justice court only “for thepurpose of the proceedings”: L. (S). v.

B. (N.), supra. [9] When the Crown enters a stay, proceedings are deemed to be at an end: College of Teachers (British Columbia) v. BritishColumbia (Ministry of the Attorney General), 2010 BCSC 847 at para. 24, 256 C.C.C. (3d) 345. Nevertheless, at common law, a courtmaintains the jurisdiction to determine access requests for exhibits even after the proceedings are concluded: CTV Television Inc. v.Ontario Superior Court (Toronto Region), (ON CA), [2002] O.J.

No. 1141 (C.A.). [10] I find that this application concerning access to the Video and the Transcripts entered in the trial are “proceedings” that flowfrom the election or deemed election of trial by judge alone under s. 13(2). Therefore, this court has jurisdiction to hear this application.This jurisdiction is exclusive: L. (S.) v. B. (N.), supra. [11] In its submission on the jurisdiction issue, the Crown referred to Laycock, supra, R. v. Sheik-Qasim (2007), (ON SC), 230 C.C.C. (3d) 531 (Ont. Sup. Ct. J.) and L. (S.) v. B. (N.), supra.

In each of these cases, the Court found that theJustice did not have jurisdiction to determine a motion for access to youth records. These cases are distinguishable . [12] In Laycock, Madam Justice Spies was considering the application in the context of an unrelated adult criminal trial. In thatcase, the adult Accused sought access to youth records of the complainant. The proceeding before Madam Justice Spies was not pursuant

to the YCJA , and was entirely unrelated to the proceedings against the youth whose records were being sought. [ 13 ] The facts in R. v. Sheik-Qasim were similar. The underlying proceeding was an adult trial, and the judge was not sitting as a youth court justice. [ 14 ] Similarly, in L. (S.) v. B. (N.) , the plaintiffs sought disclosure of youth records within the context of a civil action against the accused parties. The youth court proceedings against the accused have concluded by the time the plaintiffs brought their access application. The civil proceeding was completely unrelated to any YCJA proceedings.

Thus, the superior court that heard the plaintiffs’ application was not sitting as a youth justice court. [ 15 ] I agree with the Applicants’ submission at para. 7 of their Reply: It was clear in those three cases that the superior court judges who heard the applications for access to records under the YCJA were not “youth justice court judges”as defined under the YCJA.

They were judges in separate proceedings in which a party sought to use the youth court records, and had no relation whatsoever to the YCJA proceedings from which the records arose. [ 16 ] I find that this Court has jurisdiction to consider the access application by the Applicants. 2. Should access be granted as requested? The Law [ 17 ] The underlying principles which govern the

interpretation of the YCJA are set out in s. 3. Policy for Canada with respect to young persons 3.

(1) The following principles apply in this Act: ... (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: ... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy , are protected, [ Emphasis added .] [ 18 ] The YCJA imposes a general ban on access to youth records, subject to a few explicitly defined exceptions. No access unless authorized

(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. Persons having access to records 119.

(1) Subject to subsections (4) to (6), from 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: ... (

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

(2) The period of access referred to in subsection (1) is ... (

d) if the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, at the end of that period. Disclosure of information and copies of record 122. A person who is required or authorized to be given access to a record under

section 119, 120, 123 or 124 may be given any information contained in the record and may be given a copy of any part of the record. No Subsequent Disclosure 129. No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. [ Emphasis added. ] “Access ” and “Publication ”

[ 19 ] As the provisions above demonstrate, “access” and “publication” are two distinct concepts under the YCJA . Sections 118 and 119 govern access only. Once a person is granted access to youth records, s. 129 prohibits further disclosure, unless it is authorized under the YCJA . [ 20 ] I will deal with the issue of access first. If I should find it appropriate to grant access, my order will include provisions with respect to publication. The Test [ 21 ] In applying for access, the Applicants rely on the test that has become known as the Dagenais/Mentuck test.

The Applicants submit that this test applies to any discretionary order that limits freedom of expression: Toronto Star Newspapers Ltd. v. Ontario , 2005 SCC 41 at para. 7 , [2005] 2 S.C.R. 188. The Dagenais/Mentuck test provides that a restriction on access should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice. See R. v.

Mentuck , 2001 SCC 76 at para. 32 , [2001] 3 S.C.R. 442. [ 22 ] Based on the Dagenais/ Mentuck test, the Applicants submit that the Crown bears a heavy onus to show that disclosure of the Transcripts and the Video would subvert the ends of justice or unduly impair its proper administration: Toronto Star , supra at para. 4.

The Applicants conclude that the media is presumed to have access unless the Crown provides clear evidence of a serious risk that outweighs the deleterious effects of denying access. [ 23 ] I am not convinced that the Dagenais/ Mentuck test applies to an application under the YCJA in the manner suggested by the Applicants. The YCJA enacts a distinct framework for dealing with proceedings involving young persons. This framework must be interpreted in light of the Declaration of Principle set out in s. 3, which expressly emphasizes the young persons’ right to privacy.

Accordingly, the Dagenais/ Mentuck test must be considered in the unique context of youth criminal justice, taking into account the protections afforded to young persons. [ 24 ] In L. (S.) v. B. (N.) , supra , Justice Doherty provided a helpful overview of the YCJA scheme for the protection of records, stating as follows: 42 Sections 117 through 129 of the YCJA address access to records held by the youth justice court, the police, or a government department or agency.

Those provisions demonstrate beyond peradventure Parliament's intention to maintain tight control over access to records pertaining to young offender proceedings whether those records are made and kept by the court, the Crown, or the police. Generally speaking, access to those records is limited to circumstances where the efficient operation of the young offender system, or some other valid public interest is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come into conflict with the law . Different records are also treated differently.

Some particularly sensitive records such as medical reports are available only in limited circumstances to specifically identified persons or groups (e.g. see s. 119(6)). 43 Even where access is permitted, Parliament seeks to protect young persons' privacy interests by limiting dissemination of the information in the records even after access is granted [via s. 129]. ...

Section 118 announces an unequivocal and unqualified prohibition against access to records kept by the court, police, or Crown except as required or authorized under the Act . This prohibition is made all the more emphatic by s. 138 which makes it an offence to violate s. 118. ... 51 [Subsection 119(1)] allows any person, including the victim, to bring a motion before a youth justice court judge for an order allowing access to any of the records made and kept under the Act... ... 54 The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records.

The language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the Act . Using the words of Cory J.A. in Cook, Parliament in "clear and unambiguous terms" has placed the responsibility for determining access to records on the shoulders of the youth justice court judges. [ Emphasis added. ] [ 25 ] There is no presumption of access to youth records.

Applicants for access must fall within the enumerated categories set out in s. 119(1), and also within the access periods set out in s. 119(2). [ 26 ] Turning to the language of s. 119(2) and s. 119(1)( s )(ii), I find that the Applicants must satisfy four requirements before I can grant their application: 1. The Transcripts and the Video must be “records” within the meaning of the YCJA . 2. The Applicants must fall within the access period set out in s. 119(2). 3. The Applicants must fall within the class of persons who have a valid interest in the record. 4.

Access to the records by the Applicants must be desirable in the interest of the proper administration of justice. Are the Transcripts and the Video “records ” within the meaning of the YCJA ? [ 27 ] In Re F.N. , 2000 SCC 35 , [2000] 1 S.C.R. 880, the Supreme Court of Canada adopted a wide definition of “record” that focussed on protecting against the possibility of disclosure of the young person’s identity, rather than concerning itself with “etymological niceties” or “formal classification of documents” (paras. 23, 27).

Both the Transcripts and the Video are clearly relevant to potential disclosure of A.Y.D.’s and N.R.R.’s identities. [ 28 ] Accordingly, I find that the materials the Applicants are requesting fall within the definition of “record” under the YCJA . Do the Applicants fall within the access period set out in s. 119(2)?

[29] The Crown stayed the charges on July 8, 2011. The Applicants brought their application on July 18, 2011. This clearly putsthem within the one-year access period set out in s. 119(2)(d). Do the Applicants fall within the class of persons who have a valid interest in the record? [30] The following cases have found that the media belong to a class of persons with a valid interest in records of youth courtproceedings, to the extent directed by a judge: Re D.C.F. (1986), (AB CJ), 74 A.R. 342, 44 Alta. L.R. (2d) 258 (Prov. Ct.). R. v.

R.D.S. (1995), (NS SC), 142 N.S.R. (2d) 321, 98 C.C.C. (3d) 235 (S.C.) at para. 34. R. v. B.J., 2009 ABPC 248 at para. 4. [31] I adopt the conclusions reached in these cases and find that the Applicants are a class of persons who have a valid interest inthe record under this section.

Is access desirable in the interest of the proper administration of justice? [32] In a filed Affidavit, the Applicants demonstrate that there has been extensive publicity in Edmonton and across the countryregarding the circumstances of this case and the decision to exclude from evidence the interview contained in the video. [33] The Applicants submit that, despite the publicity, the public has not been privy to the details which would allow it to properlyevaluate and scrutinize the administration of justice in this matter. [34] The Applicants submit that without access to the records to get a better understanding of the evidence against the accused, orlack thereof, it is difficult to: (

a) assess the Crown’s decision to stay the charges or even its decision to pursue charges in the first instance; (

b) scrutinize this court’s decision to exclude N.R.R.’s statement; and (

c) evaluate the performance of the officers conducting the interview. [35] The Applicants submit that public understanding and scrutiny of these issues are crucial to the proper administration ofjustice. They contend that because the media remains subject to s. 110 of the YCJA, any access to the Transcripts and the Video wouldnot result in any publicity that could identify the accused whose names cannot be revealed to the public. Therefore, the Applicants arguethat any suggestion of potential harm arising from granting access to the records is speculative. [36] I find the Applicants’ submissions persuasive.

The evidence satisfies me that this case is a matter of significant public interest.The media reports attached to the Applicants’ affidavit demonstrate there are concerns with respect to the public understanding of theissues raised in this case. To address these concerns, transparency is essential. Access to these records would enable the media toexamine the circumstances of police questioning and the role of the Charter rights in criminal proceedings, allowing the public to gain abetter understanding of how the administration of justice functions in this country.

Access would not impair the administration of justice;it would enhance it.

[ 37 ] I find that it is desirable in the interests of the proper administration of justice to provide the Applicants with access to the Video and the Transcripts. Procedure for Access to copies of the Video and the Transcripts [ 38 ]

Section 110 of the YCJA, provides as follows: 110.

(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. [ 39 ] Any order for access cannot permit publication of information that may tend to identify A.Y.D. and N.R.R. [ 40 ] In R. v.

R.D.S. , supra , Justice Palmeter issued an access order subject to the following conditions stated at para. 2: In granting this application for certiorari and the order of mandamus, it is done on the condition that the name of the accused young person shall not be identified or published, or any information that may tend to identify the accused young person. The provisions of the Young Offenders Act shall be strictly adhered to by the press and other media of communication.

There shall be nothing published to identify the accused young person. [ 41 ] In College of Teachers (British Columbia) , supra , Griffin J. at para. 33 provided what is perhaps the most appropriate mechanism for dealing with access to court transcripts: In my view, the only way to preserve the ban is to make an order that has a built-in process that provides that the transcript is not released ... until an officer of the court reviews it and redacts information that could identify the complainant. The Crown has offered to take on this responsibility.

Since the Crown participated in the original preliminary inquiry, I accept that this would be an appropriate process to ensure maintenance of the ... ban. [ 42 ] The Crown expressed concerns about potential access but indicated that if access were granted, it did not want to be responsible for monitoring it. In a similar case, the Crown assumed some responsibility (see R. v. R.D.S. , supra ). If the applicants or the Crown need additional directions, they can return to this Court. [ 43 ] The last issue to address is the publication of the video. In R. v.

B.J. , supra , the Provincial Court prohibited access to a video of a robbery on the grounds that it would forever become part of the public record and force the young offender and the young victim to relive the circumstances of the event. The court observed, however, that a verbal description of the video would be a possible alternative, noting that a printed word carries a fundamentally different impact than a video: para. 44. I agree with this reasoning. [ 44 ] Broadcasting the video, even if it is redacted to conceal the identity of the young person, would undermine his privacy rights under the YCJA .

The video can enter the young person’s life at any point. The young person’s friends and relatives could recognize him by his voice and other indicia. Releasing the video in the public domain could contribute to the youth’s self-perception as an offender and diminish his prospect for rehabilitation: R. v. B.J. , supra . IV. CONCLUSION

Access [ 45 ] I order that: (

a) the Applicants shall be granted copies of the Transcripts and the Video, subject to completing all documentation required by the Court and strictly adhering to all provisions of the YCJA ; (

b) the Applicants shall take all reasonable precautions to safeguard the copies they receive; (

c) the Applicants shall make no additional copies of the records and shall not disseminate the copies to anyone; (

d) the Applicants shall destroy all copies no later than 3 months after receiving the same; Publication [ 46 ] I order that: (

a) the Applicants shall strictly adhere to all provisions of the YCJA ; (

b) the Applicants may not broadcast, publish, or reproduce the records and may not provide them to any other person in their entirety; (

c) the Applicants may not broadcast the Video or any portions thereof; (

d) notwithstanding the foregoing, the Applicants may directly quote from the records in any publication or broadcast, subject to the restrictions in the YCJA . There shall be nothing published that may tend to identify A.Y.D. and N.R.R. Heard on the 15 th day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of September, 2011.

J.J. Gill J.C.Q.B.A. Appearances: Sean Ward, Reynolds Mirth Richards & Farmer LLP for the Applicants Michelle Doyle Alberta Justice for the Respondent Darin Sprake Pringle, Petersno, MacDonald & Bottos for the Accused A.Y.D. Mona Duckett, Q.C. Dawson Stevens Duckett & Shaigec for the Accused N.R.R.