R. v. T.D. Date:, 2011 BCPC 428

Citation: R. v. T.D. Date: 20111205 2011 BCPC 0428 File No: 22232-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.D. RULING RE APPLICATION PURSUANT TO s.119 OF THE YOUTH CRIMINAL JUSTICE ACT OF THE HONOURABLE JUDGE N.N. PHILLIPS Youth Matter - Restriction on Access, s. 118 YCJA Crown Counsel: K. Lafontaine Defence Counsel: D. Wiebe Place of Hearing: Vancouver , B.C.

Date of Hearing: December 5, 2011 Date of Judgment: December 5, 2011 [ 1 ] THE COURT: At the conclusion of this morning's start of this youth trial relating to T.D., counsel for the young person made an application in relation to the youthful complainant for release of Youth Court records or history relating to the complainant, Mr. V. Crown counsel, in response to the application, advised the court it would be opposing the application.

We stood the matter over to the commencement of this afternoon's session, and I have now heard submissions from both counsel with respect to the matter. [ 2 ] Pursuant to the requirements of s. 119(1) (

q) of the Youth Criminal Justice Act , counsel for the young person has filed an affidavit to support the application. The affidavit is brief. I won't read it in its entirety, although it is a mere four paragraphs long. The key paragraph of the affidavit, paragraph 3, states: "access to the Youth Court history of the complainant in this matter, D.V., is necessary in order to make full answer and defence to these charges." Paragraph 4 states the application is filed pursuant to s. 119(1)(

q) of the Youth Act . [ 3 ]

Section 119 of the Act , sub (1) (q) , mirrors that language. It states: 119.

(1) Subject to subsections [and this is at the outset of subsection (1)] . . . 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 anddefence. [4] There are a number of competing interests the court has to balance in relation to an application of this nature. One is the privacyinterest of the complainant, Mr. V., who, if he has a record, will clearly have one as a young person. He is still well within the agedescription of the YCJA. That is one paramount consideration for the court. The other consideration is Mr.

D.'s ability to make fullanswer and defence. [5] I thank Crown counsel for providing the court the copy of a decision of my brother Judge Meyers in R. v. S.E.T. and J.N.N., adecision found at 2005 BCPC 123 , 2005 BCPC 0123, where Judge Meyers had a similar application to consider. It is not clearto me upon a brief review of that judgment whether Judge Meyers was faced with the application after evidence had been led or at thecommencement of the trial. What is clear in the application in front of me is that Mr. Wiebe, counsel for the young person, put theapplication before the court after having cross-examined Mr.

V., the young person, at some length about alleged criminal activities thathe may or may not have been involved in which allegedly took place around the same time and perhaps even in relation to similar orrelated events to the charges Mr. D. is facing. I appreciate Crown counsel's submission that in the narrow confines of the affidavit of Mr.Wiebe the court might not find there is sufficient evidentiary foundation by simply making the assertion that it is necessary in order tomake full answer and defence that the disclosure must be made. [6] I think this case is different than that bold assertion.

Firstly, I have heard the evidence of the complainant, Mr. V., who admittedthat in relation to two incidents which occurred around the time frame of the allegations in front of the court, he was processed by theRCMP and charged with certain criminal offences, one a break and enter and the other trafficking of Ecstasy pills. Mr. Wiebe wascareful not to ask Mr.

V. what happened as a result of those charges, which would be an impermissible question without making theapplication, but he laid the foundation and then made the application to the court. [7] As I have also referenced with counsel, I am struck by the language of subsection (

q) that simply asks counsel to make theassertion in the affidavit that disclosure is necessary to make full answer and defence. It is a somewhat unusual situation in that defencecounsel must be careful, I think, not to disclose much because they may cross some boundary in relation to their client. There is not analternative, because the Act simply says it is counsel that has to apply. There is not another option. For example, if Mr. D. wanted towaive his right to silence, the Act does not even leave open that possibility, nor does it say that somebody else can swear the affidavit.

Soit is unusual language. [8] It seems to me when I look at that language and at the fact there is some evidence which is now before the court, with acombination of the affidavit where that assertion is made, and the language in s. 119, I conclude this is an appropriate case to make theorder. It is, in the circumstances, appropriate in order to make full answer and defence. [9] I should say as well, for the record, that I am asked to make this decision in the midst of the trial. Court time is precious. Trialsmust carry on. Courts must deal quickly with applications that are in front of them.

I appreciate counsel have had to make submissionsquickly as well, responding to the case as it unfolded. Although I might have adjourned and considered the decisions that wereconsidered by Judge Meyers in his decision, I think it is necessary to carry on with the trial, and I am more than satisfied that theevidentiary foundation has been laid. [10] The second issue for the court is what disclosure should be made. It seems to me, Ms. Lafontaine, that what is necessary isexactly the way you captured it, and that is simply the disclosure of whether or not there was a conviction, and if so, for what.

I do notknow whether counsel have any submissions as to whether there is an entitlement to the result. It may very well be, given the languageof that section, that it relates to the time span of the disclosure so it might very well be that the result would be disclosed. That wouldtypically be disclosed in an adult situation. I do not know, Ms. Lafontaine, whether you have submissions on that. [11] MS.

LAFONTAINE: No, Your Honour, I don't have submissions on it, and I mean, I can make disclosure of -- if the order isjust limited to whether or not there was a guilty finding or a conviction registered -- [12] THE COURT: Yes. [13] MS. LAFONTAINE: -- then I think that follows -- the issue that follows is moot. I have -- I can provide my friend with a copyof a conviction

summary report -- [14] THE COURT: Thank you. [15] MS. LAFONTAINE: -- which appears blank to me. [16] THE COURT: I suppose the only complicating factor that might flow from that, and I do not imagine it does given that counselhave looked at the record, is, for example, if there had been a discharge and the discharge time had lapsed. Perhaps there might be anargument then, but it does not sound like that is the case. [17] Mr.

Wiebe, having now taken a look at that, I do not know if you have any further submissions on disclosure that may satisfy thematter. [SUBMISSIONS FROM 2:00:52 TO 2:02:52] [18] THE COURT: I am satisfied, then, having now seen this accused's history report, which is titled "Ministry of Attorney GeneralReport to Crown Counsel, Accused History Report in the name of D.V., date of birth December 25, 1996," which is one and the same towhat the witness testified to, that there are no convictions. I think that probably answers the question, then, Mr. Wiebe.

[FURTHER SUBMISSIONS FROM 2:03:13 TO 2:07:07] [ 19 ] THE COURT: It seems to me, Mr. Wiebe, the question can be asked. I think the court's direction at this point in time is that it cannot go beyond that in light of my ruling, and it seems that the relevance is where the issue lies. The relevance is with respect, it seems to me, to Mr. V.'s conduct in relation to what drew him to the attention of the police rather than the court involvement after he was processed and into the system. [ 20 ] So that is the ruling of the court. (RULING CONCLUDED)