Director v. J.E.S. Date:, 2013 BCPC 258

Citation: Director v. J.E.S. Date: 20130911 2013 BCPC 0258 File No: 2923-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT AND THE YOUTH CRIMINAL JUSTICE ACT , s. 123 AND IN THE MATTER OF PRINCE GEORGE FILE #12-41021 CONCERNING THE CHILD N.L.A.C. BORN [DOB] THE MINISTRY OF CHILDREN AND FAMILY DEVELOPMENT AS REPRESENTED BY THE DIRECTOR APPLICANT v. J.E.S. RESPONDENT RULING OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Director: S. D. M. Wagstaffe Counsel for the Crown: S. Thompson and J. Dufour Counsel for J.E.S. : K. Surcess

Place of Hearing: Williams Lake and Prince George, B.C. Date of Hearing: April 4, 2013 (Williams Lake) Aug. 22 and Sept. 4, 2013 (Prince George) Date of Judgment: September 11, 2013 [1] This is my Ruling pursuant to s. 123 of the Youth Criminal Justice Act, R.S.C. 2002, c. 1 (‘YCJA’) on an application by theDirector for access to records contained in a youth court criminal file involving J.E.S. The records concern a conviction for a sexualoffence nearly 10 years ago when J.E.S. was about 17.

J.E.S. is now 26. [2] J.E.S. is now the father of a daughter, N.L.A.C., who was born on [DOB]. [3] In February, 2012 the Director received a report that J.E.S., “who had previously been convicted as a youth…of a sexualoffence against a female child aged 4, was having unlimited, unsupervised access to his 8 month old daughter…”. [1] The Director wasgranted an interim Supervision Order under the Child, Family and Community Services Act (‘CFCSA’) which said that J.E.S. was not tohave unsupervised access to his daughter and that he was “not to bathe or diaper the child or perform any like task.” At the ProtectionHearing, which is scheduled to occur within the next number of months, the Director seeks a Supervision Order along the same terms asset out in the interim order but J.E.S. and, I believe, the child’s mother, K.N.M., contest the need for such an order.

It is in the context ofpreparing for the contested Protection Hearing that the Director applies for access to J.E.S.’s youth court records. [4] The particular records the Director seeks are: 1) Transcript of proceedings at trial in the matter of R. v.

J.E.S., Williams Lake # 2923-1; 2) A copy of the Information and Probation Order from this file; 3) A copy of the Youth Forensic Psychiatric Services documentation held in this file. [5] The Director’s position is that it needs to have access to these records in order to assess what risk, if any, J.E.S. poses to hisdaughter. [6] J.E.S.’ position is that these records are irrelevant to the issues relating to his daughter because they concern events thathappened 10 years ago, when he was at a completely different phase in his life.

He urges the court to dismiss the Director’s application.He argues that the plain intent of Parliament was to permit adults to make a fresh start, unburdened by problems they encountered asyouth. [7] For the reasons which follow I have decided that I must grant the Director’s application and permit the Director access to therecords it seeks. I will explain why. [8] Access to the youth records of J.E.S. is, on the face of it, barred by s. 119(2)(

g) and (

h) since more than 5 years has gone by since the conclusion of his youth court sentence. Crown Counsel advised that the date of conviction was October 7th, 2004 and a 2 year Probationary sentence was imposed, so the 5 year time limit for access to the records began running as of October 7th, 2006 and expired on October 7th, 2011. I am advised that J.E.S. had no further criminal convictions during that 5 year period and therefore, the records from his conviction as a youth ceased to be available for access as of October 7th, 2011.

The Director’s application was not filed until about a year and a half after that, on April 8th, 2013. [9] However, the Youth Criminal Justice Act, does give the court the power to permit access to youth records after the 5 yearperiod in certain circumstances. Section 123(1) is the governing

section and it reads as follows: “A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), orderthat 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 thatperson, (

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 aprovince…” [emphasis added] [10] The predecessor of

section 123 was

section 45.1 of the Young Offenders Act (‘YOA’). I have reviewed the following cases,some of which were decided under the YOA and some under the YCJA: R. v. E.H.B.M., [1995] B.C.J. No. 2825 (BCPC) upheld onappeal under the citation R. v. M., (BC CA), [1996] B.C.J. No. 1019 (BCCA). See also Re R.G, [1999] B.C.J. No.1106 (BCPC), R. v. D.L.C., [2002] N.J. No. 51 (NLPC), R. v. C.F., 2005 ONCJ 385, R. v. P.A.D., 2008 ONCJ 37 and R. v. N.B., [2011]

O.J. 3895 (OCJ) . [ 11 ] Three of these decisions have particular application to J.E.S.’ case and I will refer to them in more detail. In my view they lead to the conclusion that I must order disclosure of J.E.S.’ youth records to the Ministry of Child, Family and Community Development for the purpose of assessing what risk, if any, J.E.S. poses to his child. [ 12 ] I will begin with the case of R. v. M. At the youth court level (cited as R. v. E.H.B.M., [1995] B.C.J.

No. 2825 ) Judge Auxier granted the Crown’s application for disclosure of M.’s records regarding some sexual offences committed when he was a youth. This was for the purpose of responding to M.’s appeal of a sentence imposed on him for a sexual offence committed when he was an adult. Judge Auxier decided that, on the facts of that case, disclosure of the records was “in the interest of the proper administration of justice”.

This was upheld by the majority of the judges who heard the case at the Court of Appeal, with Justice Southin dissenting. [ 13 ] Prowse, J.A., writing for the majority, commented at paragraphs 46 to 54 that the

section in question (now s. 123 ) “reflected Parliament’s intention to readjust the balance between the rights and interests of young persons and the interests of society by favoring more disclosure, albeit in limited circumstances.” The

section requires judges to balance the interests of society in preserving records, against the interests of the young person in “overcoming past misconduct and moving into the future with a clean slate”. That balance is struck by the general rule that youth records are to be sealed after a period of time with no convictions but, as an exception to that rule, a court may still order access to the sealed records if certain conditions are satisfied.

One of those conditions is that the youth court judge must be satisfied that “it is necessary for the record…to be made available in the interest of the proper administration of justice ” [emphasis added]. [ 14 ] Re R.G., [1999] B.C.J. No. 1106 , a decision of Judge R.R. Smith of the Provincial Court, is closer, factually, to J.E.S.’ case. This was a child protection proceeding involving the infant child of R.G.

The Director had been informed that R.G.’s probation records, prepared following his conviction for sexual offences in relation to a young child or children as a youth, stated that R.G. suffered from pedophilia and was a high risk to re-offend sexually against young children. The Director had obtained access to these records as a result of an earlier ex parte order of the court.

The Director now sought an order authorizing disclosure of such records to R.G.’s girlfriend who was the mother of his child, to the girlfriend’s parents and to the public health nurse so that those persons would better understand the risk of R.G. having unsupervised access to his child. [ 15 ] The access period for R.G.’s youth records had not expired and in that way the case differs from J.E.S.’s situation. Judge Smith was making his decision under s. 44.1(1)(

k) of the YOA rather than under s. 45.1(1) which is the predecessor to

section 123 of the YCJA . However, Judge Smith did apply the same test that I must apply under s. 123, namely, whether disclosure of the youth records is “necessary…in the interest of the proper administration of justice.” He found that Parliament did not intend to limit disclosure of youth records only to situations involving the administration of criminal justice (paragraphs 23 and 32 to 36).

He found that the phrase “necessary…in the interest of the administration of justice” was broad enough to include child protection proceedings. [ 16 ] Judge Smith commented at paragraph 33 that “As important as privacy is for youth records under the YOA , there is an overriding importance, in certain circumstances, of allowing disclosure in order to protect other children.” He concluded by upholding his earlier order granting the Director access to the probation records for the purpose of assessing the risk R.G. posed to his child.

As it concerned disclosure to the mother of R.G.’s child, her parents and the public health nurse, he ordered that the Director was at liberty to disclose the findings contained in those records about the risk R.G. posed to young children, and why, but not the actual records themselves unless R.G. consented to this in writing. [ 17 ] The final case I will refer to is R. v. N.B., 2011 ONCJ 3895 . It also touches on the balance to be struck between the privacy of youth records on the one hand, and the public interest in protecting children on the other hand.

This was an application for records in a criminal court context. N.B. was charged with criminal negligence causing death of his one month old daughter. Several years earlier, when he was 16 years old, N.B. had been investigated for the offence of criminal negligence causing bodily harm to another daughter he had fathered. In aid of an application to call similar fact evidence in the current prosecution the Crown sought access to the police investigation records in relation to that earlier incident. The court granted the Crown’s application and ordered access to the records pursuant to s. 123 of the YCJA .

Commenting on the test set out in that

section – “necessary…in the interest of the administration of justice” - the court said at paragraph 40: “The interest of the proper administration of justice is particularly engaged when one is speaking about the injury and the death of infant children in my view. The public good demands that crimes against children be addressed in a profoundly responsible manner.” [ 18 ] I will now apply the law as set out in these cases to the facts in J.E.S.’ case. [ 19 ] The first pre-condition in section 123(1)(

a) is that the applicant Ministry must satisfy the court that it has “a valid and substantial interest in the record[s]” sought.

As the agency with the statutory responsibility to protect children in this Province and given the nature of J.E.S. alleged youth record as well as his close relationship as a father to the child that is the subject of the Ministry’s concern, the applicant clearly meets this first pre-condition. [ 20 ] The second pre-condition is that the Ministry must satisfy the court that it is “necessary” that it be given access to the records in question “in the interest of the proper administration of justice”. The cases I have cited assist in understanding the scope of this phrase.

Firstly, I am satisfied that child protection proceedings do fall within the scope of what Parliament intended when it chose the term “administration of justice”. Parliament did not intend to restrict such applications to the criminal law context.

Secondly, the court must balance the important value on the one hand, of allowing youth who have come into conflict with the law to make a fresh start as adults, against, on the other hand, whatever value or interest the applicant puts forward, and determine if, on the balance of probabilities, the applicant has proved that access to the records is “in the interest of the proper administration of justice.” [ 21 ] In this case the value or interest pressed by the applicant is the importance of protecting children. As identified by the judges in Re R.G. and R. v.

N.B. referred to above, this is clearly a value or interest worthy of considerable weight. In the case of J.E.S., this concern about the protection of children is quite specifically relevant as he is the father of the child in question and, quite naturally, insists that he should be entitled to a close and unsupervised relationship with his infant daughter. As well, the allegation concerning the

youth records is that they relate to a sexual offence with a very young child, a child that is fairly close in age to his daughter. In my view, these quite specific connections between the records and J.E.S.’ current situation as it concerns his daughter tip the balance and require the privacy interest to yield to the child protection interest in this case.

If J.E.S.’ relationship to the child in question was a more distant one – for example, if he were the uncle of the child or a prospective baby sitter for the child – or if he were not insisting on having close and unsupervised contact with the child, then the privacy value might very well outweigh the child protection value and lead to an order denying access to the youth court records. Similarly, if the youth records dealt with some other sort of conviction, such as a property offence, the privacy value would very likely outweigh the child protection interest.

But, that is not case and therefore I find that the Ministry has also made out the second of the pre-conditions referred to in

section 123 . [ 22 ] The third pre-condition is that the Ministry satisfy the court that “disclosure of the record…is not prohibited under any other Act of Parliament or the legislature of a province”. As far as I am aware there is no other legislation that prohibits disclosure of J.E.S.’ youth court records. [ 23 ] In

summary, I have considerable sympathy for J.E.S.’ impassioned plea delivered through counsel and in person to the effect that his life has changed completely in the 10 years since he was in youth court and, as a result of these changes he is entirely capable of being a responsible and good parent to his daughter.

However, I conclude that the application of the law as set out in s. 123 of the YCJA and as interpreted in the cases I have referred to dictates that his youth court records as set out in the Ministry’s application must be disclosed to the Ministry for the purpose of assessing what risk, if any, he poses to his daughter and I so order. I also order that the Ministry provide a copy of any such records to counsel for J.E.S. within 30 days of receiving such records. _____________ E. L. Bayliff Provincial Court Judge