By Dean Jobb
Young offenders handed an adult sentence for serious crimes not only lose the right to remain anonymous – they should expect pre-sentence and psychological reports filed with the courts to be made public.
That’s the finding of a Nova Scotia youth court judge who in May 2006 ordered the release of exhibits tendered at the sentencing hearing of a 17-year-old joyrider who killed a Halifax woman while fleeing police in a stolen car (R. v. A.A.B., 2006 NSPC 16).
“Parliament in considering whether there was a societal need to protect the identities and records of young persons charged with crimes chose not to extend such protection to those who receive an adult sentence,” Judge James H. Burrill wrote, granting a motion brought by the CBC and a Halifax newspaper.
Making the records available will give the public “the ability to engage in a discussion of the court’s decision on sentencing,” the judge added. “To withhold the exhibits … would only cause uncertainty and concern with regard to the court’s process. It would lead to less respect for the rule of law and the proper working of the courts.”
The ruling – one of the few to interpret the three-year-old Youth Criminal Justice Act’s tight controls on access to records – is a positive one for the media on several fronts, says lawyer Nancy Rubin, who acted for the Halifax Chronicle Herald.
“It confirms the distinction, which has been made by the legislature, that there is a difference between youth who are sentenced as youth and youth who are sentenced as adults,” she said. “Once he’s sentenced as an adult, his name is fair game and his adult records are fair game.”
Rubin says the ruling also “confirms the importance of freedom of expression and the media’s role in promoting public discussion of the entire court process, including the sentencing – and that interest doesn’t end at the time the trial is concluded.”
The youth’s lawyer argued that releasing the records could interfere with efforts to rehabilitate his client, who was sentenced to 54 months in custody after pleading guilty to criminal negligence causing death.
But after a review of the records – pre-sentence, psychological and custodial progress reports prepared for the court – Judge Burrill concluded “any harm that could come from now publishing information contained in the exhibits would, in my view, be minimal at most.”
The youth’s case has been highly publicized and fuelled calls for amendments to clarify when youths accused of violent crimes can be detained while awaiting trial. A public inquiry also investigated why the youth was set free two days before the fatal crash, even though he was already facing car-theft charges.
A social worker who counseled the youth testified in support of the application, but Rubin says the witness admitted the youth is making progress despite the extensive publicity.
“So there’s no link between publishing these particular records and impeding his rehabilitation,” Rubin noted. “There really wasn’t the evidence about why the records shouldn’t be disclosed, other than generalities about this being heavy stuff.”
Judge Burrill distinguished two precedents in which the media was denied access to exhibits.
In Vickery v. Nova Scotia Supreme Court (Prothonotary,  1 S.C.R. 671, the Supreme Court of Canada denied access to the videotaped confession which was ruled inadmissible, leading to the accused being acquitted of murder. In Halifax Herald Ltd. v. Nova Scotia (Attorney General),  N.S.J. No. 301, a Nova Scotia Supreme Court judge found an acquitted accused had a proprietary interest in the exhibits.
In this case, Judge Burrill said, the youth had been convicted and sentenced and the exhibits had been prepared for the court. “There is no evidence that access is sought for any improper purpose or that access would subvert the ends of justice.”
Judge Burrill granted access to two exhibits even though they were prepared for earlier youth court proceedings and did not fall within the exemption for youths sentenced as adults. The judge invoked s. 119(1)(s) of the act, finding the media has “a valid interest” in the records and access is “desirable in the interest of the proper administration of justice.”
This article was originally published in The Lawyers Weekly.<
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