2017 ONCJ 931, 2017 ONCJ 931

CITATION: G.T. v. R . , 2017 ONCJ 931 DATE: June 7, 2017 Information No. 16/1354 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. G.T. R E A S O N S F O R R U L I N G BEFORE THE HONOURABLE JUSTICE G.M. HORNBLOWER On June 7, 2017, at SARNIA, Ontario

APPEARANCES: N. Mulpuru Counsel for the Crown N. Cake Counsel for G.T. I. Bruce Counsel for the Young Person WEDNESDAY, JUNE 7, 2017 R E A S O N S F O R R U L I N G HORNBLOWER, J. (Orally): G.T. is the Respondent to an application for a peace bond under

Section 810 of the Criminal Code of Canada , brought by R.C. A hearing into that application commenced on the 27 th of March, 2017. In an unrelated Superior Court of Justice matter, it appears that a report from the Office of the Children’s Lawyer made reference to a record of a conviction under the Youth Criminal Justice Act for R.C. That information came into the hands of G.T. who now seeks access under

Section 123 of the Youth Criminal Justice Act to what is now a sealed record. It is Mr. G.T.’s belief that the record relates to a conviction for making a false report of a sexual assault. A newspaper

article reporting on a guilty plea by a youth to such an offence, dated the 22 nd of August, 2008, forms part of this Application. It is the Applicant’s position that the record should be unsealed and disclosed to him for use in the

Section 810 proceeding. Mr. G.T. argues that R.C. credibility is an issue in the proceeding and that the record would be used for the limited purpose of attacking the credibility of R.C. due to the conviction being for an offence of dishonesty. The Crown takes no position. R.C. opposes this Application for the following reasons: 1 ) The record was unlawfully disclosed in an unrelated matter; 2 ) The Application is nothing more than a fishing expedition; and 3 ) The record relates to a dated occurrence and that it’s disclosure is contrary to the intent of the Youth Criminal Justice Act.

It is only that last point that has any merit. In arguing that point, counsel for the Applicant relies upon the decision of Justice O’Connellin Boyer v. Doe, [2017] ONCJ 272. Justice O’Connell’s decision contains a thorough analysis of the underlying principles of the Youth Criminal Justice Act and in particular,the privacy interest of young persons.

Section 3(1) outlines the principles of the Act, indicating the following at subsection (b); The criminal justice system for young persons must be separate from that of adults....and must emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level ofmaturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy,are protected. In R. v.

D.B., 2008 SCC 25 , [2008] 2 SCR3, Justice Abella speaking for the majority of the court, in addressing the principle ofdiminished moral culpability of young persons within the scheme of the Youth Criminal Justice Act adopts the following statement fromProfessor Bala’s book, ‘The Law of Sentencing’: The Youth Criminal Justice Act is premised on a recognition that to be a youth is to be in a state of diminished responsibility in a moraland intellectual sense. Adolescents lack a fully developed adult sense of moral judgment.

Adolescents also lack the intellectual capacityto appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness and they maylack empathy for those who may be the victims of their wrongful acts. This is not to argue that adolescent offenders should not bemorally or legally account​able for their criminal acts, but only that their accountability should, in general, be more limited than is thecase of adults.

It is against that backdrop that the entire scheme of the Youth Criminal Justice Act is enacted, and it is with that backdrop in mind thatthe issue of access to the record is to be addressed. As a general rule, any witness in a criminal proceeding may be cross-examined with respect to a prior criminal record as part of thecredibility assessment. A record for offences of dishonesty may have greater weight in that assessment than would a record for othertypes of offences.

A judge or other trier of fact would instruct him or herself on this issue in a manner similar to that found in Justice Watt’s Manual of Criminal Jury Instruction, 2nd Edition at page 294 as follows: Some convictions, for example, ones that involve dishonesty, may be more important than others in deciding how much or how little youwill believe of and rely upon the testimony of a witness in deciding this case. Other convictions, for example, of driving offices, may beless important. Consider, as well, whether the previous conviction is recent or happened a number of years ago.

Use your common senseand experience in considering their input. It is up to the trier of fact to determine the weight of such evidence. This is so regardless of whether the offence of dishonestyoccurred as a youth or as an adult. Youth convictions, however, are not automatically available for use in attacking the credibility of awitness. The requirements of Section 123(1) of the Youth Criminal Justice Act must be met. Assuming disclosure is not otherwiseprohibited by law, a Youth Justice Court Judge may order access to the record if;

i) the person has a valid and substantial interest in therecord; and ii) it is necessary for access to be given to the record or

part in the proper administration of justice. In Boyer v Doe, Justice O’Connell defined a valid interest in a record as ‘an interest in the record which is legitimate and relevant to thepurpose for which the record is sought’. That is at paragraph 58. That is the test under

Section 119. The test under

Section 123, requiring a valid and substantial interest is more onerous, as a result of the word ‘substantial’. The ability touse the prior record to impeach the credibility of a witness in a criminal proceeding meets the test of being a valid and substantialinterest.

The second requirement is that the access is necessary in the interest of the proper administration of justice. The assessment of this requirement entails the weighing of the probative value of the disclosure of the record and the use to which it will be put and the prejudicial affect of the disclosure. Turning first to the probative value of the record. I consider the value to be minimal in these circumstances.

In instructing oneself generally on the use of the prior record in the credibility assessment, the trier of fact would also instruct him or herself on the principle of diminished responsibility inherent in the Youth Criminal Justice Act . Not only is the conviction nearly ten years old, the immature young offender to whom it relates is now a mature adult with a fully developed adult sense of moral judgment. As indicated, in these circumstances I find the probative value to be minimal.

The determination of the prejudicial effect of the disclosure requires a consideration of the rights embodied in the Youth Criminal Justice Act, in particularly the privacy right. It is clear from the Boyer v. Doe decision and the cases referred to therein, that the right of privacy for young persons is a fundamental principle of the legislative scheme. In that regard, Justice O’Connell states the following at paragraph 70; The importance of the privacy interests of the young persons under

Section 123 analysis cannot be overstated and should be given great weight. Under

Section 123 analysis, the applicant must show that his interest in the records is sufficiently valid and substantial that it displaces the young person’s pre-existing privacy interest. In these circumstances the prejudicial effect of displacing the privacy right of R.C. outweighs the probative value of the record, given what I perceive to be the minimal weight that would be given to that record. Accordingly, the Application is dismissed.