HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 21

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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 consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. Z.H ., 2018 ONCJ 21 DATE: 2018·01·16 COURT FILE No.: Peterborough 16Y0168 BETWEEN: HER MAJESTY THE QUEEN — AND — Z.H., a young person Before Justice S.W. Konyer Heard on January 15, 2018 Reasons for Judgment released on January 16, 2018 K. Eberhard and L. Wannamaker ........................................................ counsel for the Crown J. Foord and B. Crawford .......................................................... counsel for the accused Z.H.

KONYER J.: Ruling on access to records pursuant to s.119(1) (

q) of the Y.C.J.A . [ 1 ] Z.H., a young person, is being tried before me on an allegation that he committed first degree murder on the person of Terence Pringle between November 25 and 26, 2016. He was originally charged jointly with D.C., another young person. D.C. later pled guilty to the lesser and included offence of manslaughter, and was sentenced for that offence on November 20, 2017. As part of the sentencing proceedings, a pre-sentence report pursuant to s.40 of the Youth Criminal Justice Act (Y.C.J.A.) and a psychological assessment pursuant to s.34 of the Y.C.J.A. were ordered and prepared.

These reports each formed part of the record of the case against D.C., in accordance with sections s.34(12) and 40(4) of the Y.C.J.A. [ 2 ] It is the Crown’s intention to call D.C. as a witness against Z.H. It is anticipated that D.C. will give direct evidence about Z.H.’s role in the killing of Mr. Pringle, including utterances allegedly made by him. Z.H. admitted at the outset of his trial, by way of an agreed statement of facts, that he was involved to some degree in Mr. Pringle’s death.

Specifically, it has been admitted that Z.H. “committed an unlawful act, to wit: hitting TP with a bat while having the objective foreseeability of the risk of bodily harm that was neither trivial nor transitory in the context of a dangerous act”. At the end of the trial, however, I will need to determine whether the Crown has proven beyond reasonable doubt that Z.H. committed first degree murder or some lesser offence. Based on the Crown’s opening statement and the evidence that I have heard thus far in the trial, it is clear that D.C.’s evidence is important to the case against Z.H. [ 3 ] Mr.

Foord, counsel for Z.H., has brought an application pursuant to s.119(1) (

q) of the Y.C.J.A. for access to the pre-sentence report and s.34 assessment in relation to D.C. An affidavit has been filed in support of that application, asserting that access to the records is necessary in order for Z.H. to make full answer and defence. Specifically, the application seeks “access to all relevant information contained in D.C.’s pre-sentence and s.34 reports”. Mr.

Foord states that he is not seeking access to much of the very personal information often contained in these reports, but cannot assert with precision what specific information he seeks in records that he has not seen. [ 4 ] The Crown agrees that Mr. Foord is entitled to access to those portions of the records which are relevant, which in the Crown’s view is limited to statements made by D.C. about the offence itself.

To that end, the Crown has provided me with copies of the records in which the portions the Crown views as relevant are marked. [ 5 ] Parliament has established two different schemes under the Y.C.J.A . for access to records of this nature. The schemes differ according to whether the record is sought during the “access period” as that term is defined in s.119(2). For an indictable offence such as manslaughter, the access period is 5 years after the completion of the youth sentence: s.119(2)(h). Once the “access period” has expired, access to the record is discretionary and governed by s.123.

An application for access must be brought before a youth justice court judge, who may order access to all or part of the record. The

section also establishes criteria for access to the record to ensure the person seeking access has a valid interest in the record, and that access is necessary in the interests of justice: see, for example R. v. J.B ., [2008] O.J. No. 1720 (C.J.), at para. 7 . [ 6 ] Where, as is the case in this application, access is sought during the “access period”, no such discretion exists. Rather, all that is required is a simple “request” for access accompanied by evidence in affidavit form that such access is necessary to make full answer and defence – s.119(1)(q). The

section specifically contemplates access to s.34 reports, as s.119(6) provides that the need to make full answer and defence is one of the few instances where access to this particular record must be given. In short, access during the “access period” is mandatory rather than discretionary, with no provision made for partial access or a weighing of privacy interests. [ 7 ] I am bolstered in reaching this conclusion by the wording of s.119(7), which states that “nothing in s.119(1)(

q) authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence”. It appears to me that by enacting this sub-section Parliament specifically contemplated that counsel receiving access to youth records would be receiving the full record, including information that may not be admissible in evidence.

Taken together, these factors persuade me that access under s.119 is to the full record. [ 8 ] Although I appreciate the importance of the privacy of young persons, it seems to me that Parliament has specifically created a statutory scheme for access to records that has balanced the privacy interests of the subject of the records with the need for others to have access to those records for specific purposes. One of the categories of persons entitled to access is an accused or his or her counsel in order to make full answer and defence.

In this case it is clear that the credibility and reliability of D.C.’s testimony will be central to my determination whether Z.H. is guilty or not. The records in question contain information that may become relevant to the reliability of D.C.’s testimony, or his credibility as a witness. It is impossible for me to determine, in advance of D.C.’s testimony, what material in those records may assist the defence. Mr.

Foord and his client are privy to information that I do not possess, and I do not know the defence strategy at trial. [ 9 ] I appreciate that providing full access to the record to the defence in this case will have an impact on D.C.’s privacy. I conclude, however, that Parliament has carefully weighed these competing interests and has determined that the young person’s privacy interests in these circumstances must yield to the need to ensure that accused persons are able to make full answer and defence. Z.H. is charged with the most serious offence in the Criminal Code .

It is appropriate, in my view, that his counsel be given access to the pre- sentence report and s.34 assessment of his former co-accused, who will be a central witness at trial. There is no basis for me to second- guess the statutory scheme created by Parliament governing access to records such as the ones in issue in this case. [ 10 ] For these reasons, Mr. Foord and his co-counsel are granted access to the pre-sentence report and s.34 assessment prepared in relation to D.C.’s plea and sentencing. Unedited copies of each report will be provided by the clerk of the court.

It is worth repeating that access to the records does not mean that any of the contents of the records are admissible at Z.H.’s trial.

[ 11 ] Further, although access is granted, the full restrictions on publication and dissemination and other protections contained in the Y.C.J.A . continue to apply. Access to the records is provided solely to counsel for Z.H., and solely for the purpose of the defence of Z.H. in these proceedings. Disclosure of the records to any other person is prohibited. Released: January 16, 2018 Signed: “Justice S. W. Konyer”