Communiques

Ad IDEM calls for Amendments to the proposed Youth Criminal Justice Act to Provide for Improved Public Access to the Judicial Process 

Part 6 of the Youth Criminal Justice Act deals with "Publication Records And Information". Bill C-68 (section 109(1)) states that "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." 

Contrast this prohibition with Section 38(1) of the Young Offenders Act which states that ". . .no person shall publish by any means any report . . . in which the name of a young person . . ., or in which any information serving to identify such young person . . ., is disclosed."

A separate provision exists for the non-publication of the name of a child or young person who are victims or witnesses in connection with an offence committed or alleged to have been committed by a young person (s. 110(1)).

There are several exceptions to the non-publication provision in Bill C-68. These exceptions are described in the attached Fact Sheet on Publication which states:

Publication

The debate surrounding the publication of names of young people involves two legitimate and competing values: the need to encourage rehabilitation by avoiding the negative effect of publicity on the youth versus the need for greater openness and transparency in the justice system, which contributes to public confidence in an open and accountable justice system.

The proposed Youth Criminal Justice Act balances these competing values by expanding the circumstances in which publication of the youth's name is allowed. 

Publication will occur if:
· the youth receives an adult sentence;
· the young person receives a youth sentence for murder, attempted murder, manslaughter, aggravated sexual assault or has a pattern of convictions for serious, violent offences, unless the judge is persuaded otherwise;
· the youth is at large, has committed or is alleged to have committed an indictable offence, is a danger to others and publication is necessary to apprehend the young person; or
· the youth authorizes publication after he or she becomes an adult and is not serving a sentence in custody or if the youth is not yet an adult and the youth court judge is satisfied that the publication is in the best interest of the youth.

The new law will permit the Crown to give notice at the beginning of a trial that it will not seek an adult sentence in a particular case. This means that the youth would receive a youth sentence and the youth's name would not be published.

The proposed Youth Criminal Justice Act otherwise prohibits publication of the name or any information that allows the public to identify a young person who is convicted of a youth crime, a victim of youth crime or a youth who will appear as a witness. 

Ad IDEM advocates the addition of provisions that would permit greater publicity in situations that clearly warrant it.  Given the constitutional status of freedom of expression, there should not be a presumption in legislation that factual publicity is by definition adverse and negative. In many circumstances, publicity has the ability to highlight concerns about the plight of individuals caught up in the system, with a view to rectifying them.  There must be greater leeway in the legislation for timely and useful public debate of youth justice in the context of real and identifiable cases. 

Part 6 of Bill C-68 contains several provisions, for example, allowing the young person to publish or cause to be published, information that would identify him or her (eg. s. 109(6)). The reality is that a young person or their parents may have a legitimate interest in participating in public discussion of their case by doing radio or on-camera television interviews, for example, but will not have the resources or time to hire a lawyer to seek to overturn an automatic publication ban on their picture or other information which would serve to identify them. Further, at times, any delay in being able to broadcast such interviews can have an adverse impact on the young person involved. The media can often assist. 

One possible amendment would be to permit a young person and their parent or guardian to speak out about their case in a manner that would identify them to the public, without the requirement for an application for judicial approval, and without the associated delay and cost. This would be a presumptive right to speak. If their collective consent cannot be obtained, but the young person still wishes to participate in or permit publicity about their case, the media or any member of the public should have a right to ask the court, with the young person's support, to publish information which would identify that young person. 

There should be also be a provision that gives the Youth Justice Court a discretion to allow publication if it is in the public interest, regardless of who makes the application. In the alternative, the court should have this discretion on an application by a member of the media. Factors that might be considered in any such application could be:
   1.     The circumstances of the alleged offence or offences 
   2.     The background of the young person as a young offender, and the likely effect of publicity on them, and 
   3.     Existing knowledge in the community about the identity of the young person, bearing in mind that given the size of the community a publication ban may be completely ineffective in any case.

An additional provision that would be useful would make it clear that any prohibition on identifying a young person disappears on the death of that young person. This would be consistent with previous court rulings. This point should be clear on the face of the legislation, so there is no room for ambiguity. A young person who has died has no further interest in protecting their reputation for a future life free of earlier adverse publicity. 

Ad IDEM will seek to have these and other publication issues addressed as the new legislation is addressed by Parliament.