R. v. R.P., 2020 ONCJ 455

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(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. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. CITATION: R. v. R.P., 2020 ONCJ 455 DATE: September 28, 2020 Information No. 2811-998-19-38042-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. R.P. R U L I N G BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on September 28, 2020, at OSHAWA, Ontario APPEARANCES : N. Hegedus Counsel for the Crown K. Manitius Counsel for R.P.

R U L I N G WAKEFIELD, J. (Orally): In terms of the Crown application for the appointment of counsel for the youth in the matter of R.P., who is the subject of the third party records application - I should say, can you hear me, Ms. Manitius? MS. MANITIUS: Yes, I can, Your Honour. THE COURT: Mr. Interpreter, you can hear me as well? INTERPRETER: Yes. THE COURT: Good. I have had the opportunity now to review the cases provided by the Crown, being R. v. Joseph Lee , Ontario Court of Justice General Division case from September 24th, 1997. As well, that latter case being a decision of Justice Chapnik.

As well as a decision rising from R. v. Miguel Maramba , a decision of Justice Belleghem, which is dated September 10, 11, 12, 1996. Together with a case that I mentioned earlier when CAS counsel was here but I misremembered the level of court; it is actually Division Court and that case is Justice for Children and Youth and A.G. (the child) (Appellants) v. J.G., L.L. and Children and Family Services of York Region (Respondent ), being a decision of the Divisional Court reported at 2020 ONSC 4716 with a panel comprised of Justices Corbett, Doyle, and Favreau.

Dealing first with the cases provided to me by the Crown, certainly in the Lee case, it is not clear what the underlying charges were, merely that the O’Connor regime governed there and Her Honour confirmed in that case that the complainant was already represented by counsel and that the complainant, in terms of third party records application had standing in this matter.

Similarly, the decision of Justice Belleghem in the Maramba matter, which mind you, was a sexual assault charge and as such in today’s regime, would have opened up the door for representation in any event, clearly however, His Honour also confirmed that the complainant on third party records application had standing on respect to that application.

What tips the balance for me because none of those decisions clearly state in terms of the ability to appoint counsel for the complainant in these matters, was reviewing the Divisional Court decision of Justice for Children and Youth , in that it was a review of a trial judge’s direction that counsel for the young person in that matter through a legal clinic, should not have had access to that lawyer; it was prohibited from doing so and the lawyer prohibited from dealing with the youth.

The legal clinic appealed that decision to the Divisional Court and that Court made it very clear in my view that in reviewing it, that even for a youth not having standing and even if under the jurisdiction of either the Court and or the Society involved, that does not detract from that youth’s right to have access to his or her own lawyer, absent of extraordinary circumstances. Here, in the Justice for Children matter, the youth did not have standing as on a prior occasion, the Court had denied standing to the official child’s lawyer who was potentially going to represent the youth.

Notwithstanding the lack of standing, the Division Court has made very clear the importance of the youth having access to a lawyer, should he or she desire to do so. Again, the issue of funding is silent in the Justice for Children decision but in reviewing that decision and the level of importance that a youth will have in any legal proceedings, I conclude that I do have sufficient jurisdiction inherent in my ability to control the process of my court to make an order appointing counsel for the youth in this matter.

I suppose as an alternative, given that the youth would have standing to make his own submissions on accessing records with the clear prejudice to a young person trying to have advocate for him or herself, that it would be open to me to also consider the appointment of amicus, however that is not what is being sought here and I restrict my comments to my ability to appoint counsel to represent the youth in these third party records application proceedings, which I now so do.