Visitor IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA Citation: R. v. T.C., 2006 NSPC 61 Date: 20061208 Docket:1583602, 1583665,1592075,1637211,1637212,1637279,1658793,1658794,1660279,1660281,1660282, 1661027,1661028,1661029,1661030,1661031,1672891,1672892,1677544,1677545,1677546, 1682564,1682565,1686628,1690222,1690224,1693015,1693025,1693892,1697668,1697672, 1708843,1708844. Registry: Halifax Between: Her Majesty the Queen T.C. Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on November 6, 2008. Publication restriction: Section 110 and 111 of the Youth Criminal Justice Act Judge: The Honourable Pamela S. Williams Oral Argument: December 5, 2006 Written Decision Delivered Orally: December 8, 2006 Counsel: Gary Holt, for the Crown Megan Longley, for the Defendant Peter McVey, for the Department of Community Services Nancy Rubin, for the Chronicle Herald Alan Parrish, for the Daily News By the Court: INTRODUCTION: [1] Counsel on behalf of the media, the crown, the young person, T.C., and the legal parent/guardian of T.C., The Minister of Community Services seek a ruling from this Court as to whether the public, including the media, will be permitted to attend the court convened pre-sentencing conference, scheduled to take place on December 11, 2006. The crown, the young person and the parent argue that the conference should not be open to the public and the media. Counsel for The Chronicle Herald and the Daily News take the position that this is public proceeding to which they should have access. BACKGROUND: [2] On October 17, 2006 the young person, T.C. appeared before the Youth Justice Court and entered or confirmed guilty pleas to 31 offences involving assaultive behaviour, threats, property damage and breach of court orders in relation to group home placements over nearly 14 month time period between August 24, 2005 and October 13, 2006. [3] Section 36 findings of guilt were made by this Court on October 17, 2006 and pre-sentence report was ordered. Defence counsel on behalf of T.C. also asked this Court to consider using its discretionary power under s. 41 of the Youth Criminal Justice Act, (YCJA), to convene conference under s. 19 of the Act to consider recommendations on an appropriate youth sentence for T.C. Compelling reasons in favor of conference were advanced by both crown and defence. The Court thus ordered that conference be held prior to the sentencing hearing. [4] This case has attracted considerable media attention, at least in part, because of a concern, raised by some, as to the adequacy of government programs and support for the young person who apparently suffers from mental health issues and who is in the permanent care of the Minister of Community Services. In turn, this case has also raised interesting issues relating to the conferencing provisions of the YCJA, the ‘open court principle’ and the discretionary power of the Youth Court, pursuant to s. 132 to exclude members of the public from the conference. [5] preliminary issue was raised by counsel on behalf of the Daily News as to whether or not the parent, the Minister/Department of Community Services, has standing to argue the merits of this application, given that they are not party to the proceedings. Although parent is not party to Youth Criminal Justice proceeding per se, Parliament has, in my view, recognized the need for the parent to play vital role before the Youth Court. This is evidenced by numerous provisions in the YCJA which speak to the participation of the parent: (1) Parents should be informed of measures and proceedings involving their children and encouraged to support them in addressing their offending behaviour: YCJA s. 3(1)(d)(iv). (2) Notices and copies of reports orders, reasons for sentence and court records are to be provided to parents: YCJA ss. 11, 26, 96(3), 34(7)(a)(ii), 40(5)(a)(ii), 56(1) and (2), 94(12), 97(3)(c), 109(5), 119(1)(e). (3) The Court can compel the appearance of parent by court order: YCJA s. 27. (4) The Youth Court judge, before imposing or reviewing sentence, is to consider any representations made by parents: YCJA ss. 42(1) and 94(19). [6] In addition, in my experience, sitting as youth court judge, parents often provide valuable information and assistance to the Youth Court in the course of proceedings. am therefore of the view that the parent, the Minister/Department of Community Services can and should provide input into the question of whether or not the conference should be open to the public and the media. (1) Is the Youth Justice Court convened conference, presently scheduled for December 11, 2006 part of the court process? (2) If so, is it public proceeding which entitles the public and the media to attend? (3) If so, should the Youth Justice Court, nonetheless exercise it’s discretion to exclude the public and the media pursuant to s. 132 of the Youth Criminal Justice Act? [8] The use of conferences, to deal with youth in conflict with the criminal law, is statutorily authorized by the YCJA. ‘conference’ is group of persons convened to give advice in accordance with section 19 of the YCJA: YCJA s. 2(1). [9] Section 19 authorizes various individuals, including youth justice court judge, to convene conference for the purpose of making decision required to be made under the YCJA during the course of proceedings. [10] The mandate of conference may be, among other things, to give advice and provide recommendations on sentencing, which also is undoubtedly part of the court process: YCJA ss. 19(2). [11] When youth justice court finds young person guilty of an offence, the court may convene or cause to be convened conference under section 19 for recommendations to the court on an appropriate youth sentence: YCJA s. 41. [12] youth justice court shall, before imposing youth sentence, consider any recommendations submitted under section 41: YCJA s. 42(1). [13] Section 132 of the YCJA gives youth court judge discretionary power to exclude members of the public from court proceedings if the court considers that the person’s presence is unnecessary to the conduct of the proceedings and the court is of the opinion that either any evidence or information presented to the court would be seriously injurious or seriously prejudicial to the young person or it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. Common Law: [14] The presumptive rule with respect to court proceedings is one of openness, public accessibility and judicial accountability. Often referred to as the ‘open court principle’ it is hallmark of democratic society and applies to all judicial proceedings. Public access to the courts guarantees the integrity of judicial processes by demonstrating ‘that justice is administered in non-arbitrary manner, according to the rule of law’: Re Vancouver Sun, 2004 SCC 43 (CanLII), [2004] S.C.J. No. 41 at paragraphs 23 25. [15] Section 11(d) of the Charter guarantees that everyone is presumed innocent until proven guilty in fair and public hearing. Public access to the hearing ensures that the judicial process is independent and impartial and that justice is administered, and is seen to be administered, fairly according to the rule of law. Openness is integral to public confidence in the justice system and the public’s understanding of the administration of justice. [16] The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein. The freedom of the press to report on judicial proceedings is core value as is the right of the public to receive such information. Often the press plays vital role in being the means through which the public receives information about judicial proceedings. “Consequently, the open court principle, to put it mildly, is not to be lightly interfered with”: Re Vancouver Sun, supra, at paragraph 26. [17] The open court principle applies to youth court proceedings but is subject to number of important statutory exceptions, in the way of enhanced procedural protections which ensure young persons are treated fairly and their rights, including the right to privacy, are protected: YCJA s. 3(1)(b)(iii). The Supreme Court of Canada in Re F.N., 2000 SCC 35 (CanLII), [2000] S.C.J. No. 34, commented on this as it pertained to the Young Offenders Act (many relevant provisions of which have been reproduced in the Youth Criminal Justice Act). At paragraph 10, Justice Binnie noted: It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are number of important exceptions where the public interest in confidentiality outweighs the public interest in openness. This balance is dealt with explicitly in the relevant provisions of the Young Offenders Act, which may be interpreted in light of the Declaration of Principle set out in s. 3. [18] The Supreme Court of Canada acknowledges that these competing objectives are inherent in the scheme of the Act itself and that balancing is required. On the one hand there is the need for confidentiality to protect the identity of the youth so that stigmatization or premature labeling does not interfere with rehabilitation. On the other hand the youth court is open to the public and its proceedings are properly subject to public scrutiny. The legislation attempts to protect the privacy interests through the non-publication provisions, the restrictions on access to records and judicial discretion to exclude members of the public from proceedings if such exclusion is necessary to prevent serious risk to the proper administration of justice and it can be shown that the benefits of the exclusion order outweigh its negative effects on the rights and interests of the parties and the public: YCJA ss. 110, 119 and 132. [19] The public and the media have right to attend any court proceedings subject to the discretion of the court to exclude them. The burden of displacing the general rule of openness lies on the party making the application. The test to be applied, commonly referred to as the ‘Dagenais/Mentuck test’ as developed by the Supreme Court of Canada, requires balancing of competing interests, that is, freedom of expression and other important right and interests: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] S.C.R. 835; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] S.C.R. 480; R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] S.C.R. 522. [20] The two-pronged Dagenais/Mentuck test is as follows: (1) Is such an order necessary in order to prevent serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (2) Do the salutary effects of the order, outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to fair and public trial and the efficacy of the administration of justice: Mentuck, supra, at para. [21] The Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, under statute (as is the case here) or under rules of court. Public access will be barred only when court, in its judicial discretion concludes that disclosure “would subvert the ends of justice or unduly impair its proper administration”. party seeking to limit public access to legal proceedings must rely on more than general assertion that publicity would compromise” the proceeding or procedures related to it. In particular, the ‘risk’ addressed in the first prong of the analysis must be ‘real, substantial and well grounded in the evidence’, persuading the Court that there is ‘serious danger to be avoided’: Toronto Star Newspaper Ltd. V. Ontario 2005 SCC 41 (CanLII), [2005] S.C.J. No. 41 at para. and 9; Re: Vancouver Sun at para. [22] Though applicable at every stage of the judicial process, the Dagenais/Mentuck test must be applied in flexible manner, and regard must be had to the circumstances in which order is requested: Toronto Star Newspaper Ltd. v. Ontario, supra at para. 8. [23] Judges should expect to be presented with evidence credible on its face of the anticipated risks that an open inquiry would present, including evidence of the information expected to be revealed by the witness. “Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice”:Re: Vancouver Sun, supra at para. 31. [24] Evidence, in my view, can be by way of affidavit, viva voce testimony, including hearsay R. v. F.P. [1997] No. 285) or with agreement, by representations of counsel. [25] In Re Southam Inc. And The Queen (1984), 1984 CanLII 2169 (ON SC), 14 D.L.R. (4th) 683 (Ont.H.C.); affirmed 1986 CanLII 2859 (ON CA), 26 D.L.R. (4th) 479 (Ont.C.A.); leave to appeal refused May 22, 1986 (S.C.C.), decision which upheld the constitutionality of s. 39(1) of the Young Offenders Act, the precursor to s. 132 of the YCJA, one of the issues identified was the need to balance two conflicting public interests, freedom of expression, including freedom of the press, on the one hand, and the interest of society in the manner in which young persons in trouble with the law are dealt with on the other: On the first, it must be accepted that freedom of the press requires that, in all but exceptional circumstances, our courts be freely accessible to all members of the public. This concept has been pillar of our law for long time. On the other hand, it must be accepted that society’s interest is broad concept and includes the impact of the criminal justice system on youthful offenders and the resulting interface between the family and all members of the public. Re Southam Inc. and the Queen (Ont. H.C.) supra at page 688. And in the end, the court concluded that, ...the interests of society in the protection and rehabilitation of young people involved in youth court proceedings is value of such superordinate importance that it justifies the discretion given to youth court judge under s. 39(1)(a) [of the Young Offenders Act, now s. 132 of the Youth Criminal Justice Act]. Section 39(1)(a) is, in my view, reasonable limitation on freedom of expression including freedom of the press: Re Southam Inc. supra at page 705. [26] These two competing principles can also be found in the Preamble to the YCJA and in the Declaration of Principles in section of the YCJA: WHEREAS information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available; Declaration of Principle s. 3(1) The following principles apply in this Act: ... (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: ... (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (d) special considerations apply in respect of proceedings against young persons and, in particular,... (I) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [27] Conferencing is new tool under the YCJA. It can be utilized in variety of ways, by variety of persons for variety of reasons. The Act permits conferences to be called by the judge, the provincial director, police officer, justice of the peace, prosecutor or youth worker. Its mandate may be, among other things to give advice on appropriate extrajudicial measures, conditions for release, and sentences. Conferencing can be “available as tool for Youth Courts to delve into the reasons for offending and the best measure available to reduce offending behaviour and rehabilitate young people”: R. v. M.(B.) [2003] [28] Nova Scotia has established rules for convening and conducting conferences but those rules do not apply to conferences convened by youth justice judge. It is worth noting however that those rules do provide that participants to the conference are advised that information and records discussed during the conference are confidential: NS Department of Justice, Correctional Services Policy and Procedures No. issued April 1, 2003 and revised August 1, 2003. [29] This case, however, concerns court convened pre-sentencing conference. The purpose of the conference is to provide recommendations on sentence for T.C. This court is mandated to consider any recommendations or other representations made by the participants. This leads me to the inescapable conclusion that the conference is part of the court process just as, for example, the preparation of pre-sentence report is part of the court process. [30] In my view, conference is not always public proceeding. For example, as above, Correctional Services Policy and Procedures for convening conferences and conducting conferences could lead one to conclude that confidentiality concerns may well dictate that those conferences be conducted in private. It seems to me however, that when a judge attends a court convened conference, receives input and recommendations from various parties, and is mandated to consider them during the course of deliberations in arriving at an appropriate youth sentence, it is, prima facie, a public proceeding. [31] also agree with comments of Professor Bala YCJ Law (Irwin Law, 2003) cited at para 48 of R. v. M.(B.), supra: If youth justice court judge convenes and presides over conference under section 41, it will be held as part of the sentencing process. In this situation, the participants in the conference are technically not witnesses who are subject to cross-examination by counsel, although there may be dialogue involving the judge, lawyers, and members of the conference. If conference is attended by the judge, record of the proceedings should be kept and may be used by the judge for the purposes of making decisions about the youth. The judicially convened conference is intended to bring the community and the court together and requires trust and cooperation between members of the community and the [32] Public and media attendance at this court convened conference, is nonetheless subject to judicial discretion to exclude members of the public and the media pursuant to s. 132 of the YCJA. The power to order exclusion of the public from this proceeding is recognized to be an extraordinary remedy and great care must be exercised in deciding whether to use this discretion. The open court principle is not absolute. It is subject to the considerations set out in s. 132 and in the Dagenais/Mentuck test. The question becomes one of whether the various considerations weigh in favor of an exclusion order. Put another way, does the evidence before the court rebut the open court principle and support an order pursuant to s. 132 of the Act. [33] It must be made clear at the outset that the request for an exclusion order relates only to the conference itself. The sentencing hearing will be held in open court and the public and the media will have right to attend. Any recommendations flowing from the conference will be stated on the record in open court. will consider those recommendations and give reasons for either accepting or rejecting any recommendations made. [34] This conference can aptly be described as professional case conference. Invitees are members of the mental health and child welfare community who have voluntarily agreed to come together in one room, with the consent of T.C. to discuss issues relating to T.C., issues involving unique and incredibly intimate details of her life including her mental health, her challenging behaviour and in particular, her involvement with psychiatrists, psychologists and therapists. This is all extremely personal, private and confidential information, details of the kind often found in s. 34 assessment reports, which of course are subject to procedural protection under the YCJA. [35] The benefit of conference is that all professionals are able to come together in one room, share opinions and experiences as they relate to T.C. with view to arriving at recommendations that take holistic multi-disciplinary approach. These professionals have specific knowledge and experience with T.C. They are able to advise the court on complex personal issues that plague T.C., the attempts that have been made to address those issues in both the child welfare and the mental health context. Hopefully they will be able to advise the court as to what alternatives are available that are likely to meet the needs of T.C. and get at the root causes of her offending. This approach, combining the expertise of professionals in the fields of health, child welfare, education and justice, using restorative approach may be the best means available to assist the court in determining an appropriate sentence which addresses T.C.’s rehabilitation. [36] In my experience, having attended number of these conferences in the past, the information shared is of highly confidential nature. Both the consent and the cooperation of the young person is necessary in order for conference to be successful. Conferences involve very frank and open discussion and encourage the participation of the young person to ‘buy into the process’ and feel like he/she is part of the solution and not just part of the problem. Evidence in Support of the s. 132 Application: [37] Counsel for the young person has made application under s. 132 of the YCJA requesting that the court exclude the public and the media from the pre-sentencing conference scheduled for December 11, 2006. The crown and counsel on behalf of the Minister join in that application. [38] Ms. Longley, counsel on behalf of T.C. advises that T.C. consents to the disclosure, the sharing and the discussion of her confidential information amongst conference participants only. In other words, her consent to sharing otherwise confidential information is contingent upon the conference being closed to the public and the media. This information, received by way of representations of counsel, as opposed to viva voce or affidavit evidence is nonetheless compelling. Ms. Longley is agent for T.C. and is conveying her client’s instructions to the court. It may not be evidence, in the pure sense of the word but it is credible and compelling, worthy of considerable weight. [39] Counsel have determined that the list of invited attendees includes Denise Porelle, Ann Bond, Mona Bordage, Lynn Brogan and Leonard Doiron, all of whom are social workers from the Department of Community Services. They have been providing child welfare services for T.C. since 1999. Three individuals from T.C.’s most recent placement at [a group home] will attend as well. They include Jackie Woodford, supervisor, [group home worker], Kim Nicolaou, Youth Care Worker, and Dawn Hall, Clinical Social Worker. Dr. Carolyn Humpheys, psychologist who provided therapy to the young person will attend as will Dr. Suzanne Zinck, child and adolescent psychiatrist, I.W.K. Health Services, who is T.C.’s treating psychiatrist will likewise be attending. Dr. Ruth Carter, Director of Provincial Child and Youth Forensic Services, I.W.K. Health Centre has been invited to attend as has Sherry Bernard, probation officer tasked with preparing the pre-sentence report in relation to T.C.. [40] The crown called Denise Porelle to give viva voce evidence in support of the s. 132 application. Ms. Porelle is social worker who has been employed with the Department of Community Services for the past 18 years. Initially ‘long term protection worker’ with the […] District Office of the Department of Community Services, Ms. Porelle has, for the last 10 years, been ‘children in care worker’. Ms. Porelle testified that she has known T.C. since July 2005. She worked with T.C. from July to October 2005 and again from June 2006 to the present. [41] Ms. Porelle testified that if the media were to attend the conference she, and others from the Department would not be able to speak openly about their involvement with the child due to reasons of confidentiality. She indicated for example there would be lot of detail of the relationship with T.C. that she would not be at liberty to disclose. She was of the view that she was bound by policies relating to confidentiality which pertain to her as social worker. She indicated that those same policies would apply to her supervisors. [42] Ms. Porelle indicated that she has personal knowledge of T.C.’s residence at [the group home], place designated for young women with emotional and behaviourial issues. The care giver [group home] was required to sign confidentiality agreement which extends to all third parties except doctors and psychologists or to those whom consent has been given by the Department of Community Services. [43] Further Ms. Porelle testified that she spoke recently with Dr. Suzanne Zinck, who advised her that she, Dr. Zinck would not be able to participate in the conference if the media were present. It was Ms. Porelle’s impression that Dr. Zinck felt it would be ‘highly inappropriate’ for her to attend under those circumstances because of confidentiality concerns and rules with respect to same under her governing body. [44] Aside from confidentiality concerns, Ms. Porelle testified that as T.C.’s guardian, the Department have right to protect children in care from divulging information that could be harmful. As further aside, but perhaps relevant, is that Ms. Porelle stated that T.C. has not responded well to ‘things in the paper already’. [45] Ms. Porelle admitted that she has testified in court despite confidentiality policies, agreements or legislation but was not at all sure whether, even with the judge’s prompting, she would volunteer the same information at conference where her attendance and her participation were entirely voluntary. [46] To summarize the evidence: (1) T.C. does not consent to sharing her personal and confidential information at the conference if the conference is open to the public and the media; (2) Denise Porelle, her colleagues and supervisors are bound by policies of confidentiality relating to T.C. and are unable to divulge much information relating to T.C. in public forum and without T.C.’s consent. (3) The care giver [group home] has signed confidentiality agreement with the Department of Community Services relating to T.C. and they are bound by the terms of that agreement. (4) Dr. Suzanne Zinck, through Denise Porelle, has indicated that if the media attend the conference she will not be able to participate. [47] As indicated above, the court can receive evidence in variety of forms, including viva voce and affidavit evidence. The court requires credible evidence of the anticipated risks that an open inquiry would present. The evidentiary burden at this stage of proceedings is by no means proof beyond reasonable doubt. am guided by the case law that says may rely on evidence that reveals what is reasonably expected by way of anticipated information sharing. find Ms. Porelle’s evidence credible and compelling. There is no reason why should not rely on it. [48] remind myself of the context in which the anticipated information is to be shared. The conference is voluntary process. Attendance and participation is optional. The court has no power to order the attendance of anyone (except the young person and the parent). The court has no power to subpoena anyone to attend or to testify. Again the conference is an informal tool of the YCJA predicated on the need for consent and cooperation. It is not court hearing. [49] Counsel for the Minister of Community Services argues that public policy issues regarding children in care of child protection agency are an important consideration as well, as set out in the Children and Family Services Act (CFSA). He cites decision of the Honourable Judge David R. Hubley of the Family Court for the Province of Nova Scotia wherein he relied on s. 93 of the CFSA to exclude representative of the Chronicle-Herald newspaper form the secure treatment hearing held respecting this same young person on November 21, 2006. Though agree with Ms. Rubin, counsel on behalf of the Herald that the CFSA is not applicable here, it does highlight the ever present need to be mindful of the sensitive nature of information and the privacy rights of the child. [50] Counsel for the Minister also asks this court to take judicial notice of ss. 26 and 27 of the Freedom of Information and Protection of Privacy Act which govern the conduct of representatives from the Department of Community Services. Those sections prohibit the disclosure of personal information regarding young persons by department officials without the young person’s consent. have reviewed those provisions and nowhere does it allow for the voluntary sharing of information in forum such as conference without the young person’s consent. Section 27(e) provides for the disclosure of personal information for the purpose of complying with subpoena, warrant, summons or order issued or made by court...with jurisdiction to compel the production of information. This explains why Ms. Porelle is able to divulge such information under oath but not in conference setting, without the consent of the young person. With respect, can not accept Ms. Rubin’s argument that the Freedom of Information and Protection of Privacy Act does not include the subject matter of this application. Nor can conclude, given the very clear language of ss. 26 and 27 that disclosure of this information is possible under s. 31(1) as being in the public interest. [51] The very real distinction must be made here between the legal obligation to testify in court under oath and the voluntary participation in conference. There are significant legal implications that flow with respect to confidentiality in the voluntary conference setting. [52] take judicial notice of the fact that doctors too are bound by professional oaths that limit their ability to share confidential information about their doctor-patient relationships. This is evidenced by Dr. Zinck’s choice not to attend the conference if the media is present. [53] In assessing the evidence am to apply the Dagenais/Mentuck test in contextual manner and am entitled to issue s. 132 ban if am satisfied that publicity would unduly impair the proper administration of justice. Application of s. 132 of the YCJA: [54] Under the first prong of the test set out in s. 132 am to determine whether the presence of the public and the media is unnecessary to the conduct of proceedings. Ms. Rubin would have the court interpret the term ‘unnecessary’ broadly and conclude that, to the contrary, the media’s presence is vital to the process so as to ensure the process is open, transparent and accountable. [55] Counsel for both the crown and the young person argue that the presence of the public and the media is in no way necessary to further the process. They suggest that the public’s right to know what takes place at the conference does not make them necessary to the conduct of proceedings. [56] also agree with the view expressed by counsel on behalf of the Minister that if the media and others are deemed necessary to hold the conference, their attendance would always be necessary and the court should not accept the position taken by the media which amounts to ‘self-designated necessity’. [57] Although agree with Ms. Rubin that the issue is rooted in ‘need’ take the view that the plain meaning of the word unnecessary be applied in narrow context. In other words, is the public and the media unnecessary in the sense that they have nothing to offer, by way of recommendations or input at the conference convened to assist the court in imposing sentence. If we were to construe the provision more broadly than that we could be implying that the public’s presence is always necessary and party would not be able to satisfy the first prong of the test. [58] conclude that the presence of the public and the media at the conference is unnecessary to the conduct of proceedings as anticipated. [59] The second prong of the test requires that also consider whether the information presented to the court at the conference would be seriously injurious or seriously prejudicial to the young person or that it would be in the interest of the proper administration of justice to exclude any or all members of the public from the court room. [60] Ms. Longley submits that there may be safety issues relating to her client if the public, including the media know where she lives or knows what medication she takes. find that there is no evidence to support this position. It is speculation at best, the kind of thing that was rejected in R. v. Quintal [2003] ABPC 79 and Toronto Star Newspapers Ltd v. Ontario, supra. [61] Mr. McVey, on behalf of the Minister, makes valid point though. There seems to be little doubt that treatment issues and needs will be at the heart of this conference. If invitees are unwilling to attend or are unwilling to participate in meaningful way, in the presence of the public and the media, this does directly affect T.C.’s s. 11(d) Charter right to fair hearing because all the necessary information will not be before the Court. This could prove to be seriously prejudicial if the avenue for fruitful discussion were foreclosed. This argument though could better be advanced in terms of the proper administration of justice component in the second prong of the test. am not convinced that information to be presented to the court will be seriously injurious or seriously prejudicial to T.C. [62] The remaining point is whether it is in the interests of the proper administration of justice to exclude any or all members of the public from the conference. It is at this juncture that must turn my mind to the Dagenais/Mentuck test and apply it to s. 132 of the YCJA. must consider whether an exclusion order is necessary to prevent serious risk to the proper administration of justice because other reasonable alternatives will not prevent the risk and if so, then determine whether the positive effects of such an order would outweigh the negative consequences of restricting the public’s right to freedom of the press, to the accused’s right to fair trial and to the efficacy of justice. [63] The crown and defence argue that the public and the media are not privy to other information gathering processes (such as those which go into the preparation of pre-sentence reports and assessment reports) so why should they be privy to the information gathering that occurs at conference. Both are nonetheless part of the court process. am of the view that more than this is required in order to justify exclusion. have to weigh and balance the competing interests in my exercise of judicial discretion. [64] The administration of justice is furthered by obtaining the best possible information from those identified as best able to provide it so that recommendations will be produced which will lead to the best result (sentence) possible. ask myself how is that best to be accomplished in circumstances which require the voluntary involvement of professionals, many of whom are bound by confidentiality agreements, codes of conduct or legislation, who are permitted to share such information, by consent of the young person, only with other conference invited attendees. It has been suggested that under the glare of public scrutiny people would be reticent to participate. view the evidence as being much stronger than that. Confidentiality concerns expressed by professionals will likely prevent many from participating in any meaningful way. [65] This conferencing tool, in these circumstances, is used as part of unique and delicate process to gather information not otherwise available to the Court. It provides an excellent opportunity for all professionals to put their collective heads together and attempt to arrive at solution in the way of recommendations to the court for sentencing of T.C. The fear expressed by counsel on behalf of the Minister that “the conferencing tool will wilt on the vine” if open to the public and the media, is very real and well-grounded concern. We are faced with the very real probability that professionals will either bow out of the process altogether or they will not participate in the process in any meaningful way. That is the reality of the situation. [66] Counsel for the media suggests that this is simply fear-mongering on the part of the crown, the defence and the Minister and that the court should not be convinced to close the process simply because confidential and embarrassing information may be the subject of disclosure. They cite R. v. V.(J.W.) [2003] BCPC 234 and say even though potentially confidential and embarrassing information was going to be presented at transfer hearing, the judge in that case, nonetheless, ordered that the hearing be open to the public. But that was hearing, where witnesses were compelled to testify. This is conference. The Court can not compel professionals to participate. [67] The media also relies on R. v. A.A.B. [2006] NSPC 16 and R. v. R.D.S (Re Halifax Herald Ltd.) [1995] NSJ No. 207, both of which related to requests for “records”after the completion of youth court proceeding. In A.A.B. there was an attempt to ban access to records, some of which enjoyed the protection of the YCJA and others which did not. At pars. 14 and 17 Judge Burrill stated, in part: am not persuaded, after having carefully reviewed the contents of all exhibits in question, that there is any information contained therein that would harm A.B.’s rehabilitative prospects. Much information contained in the reports has already been placed in the public domain during the sentencing hearing. ...all of the exhibits which are the subject of this application are, however, inextricably linked and meaningful review of one can not occur without reference to the others. As result, in relation to exhibits and 10, grant an order pursuant to s. 119(1)(s) that will permit an accredited member of the media access to those exhibits because on the unique facts of this case find that it is desirable in the interest of the proper administration of justice that media be permitted access. [Emphasis added]. [68] In R.D.S., supra, the media requested an order for certiorari to quash the decision of the youth court judge denying the media access to the tape of proceedings of youth court matter. The information requested was the tape of proceedings, containing information already released in open court. The judge had imposed complete publication ban on an open court proceeding after proceedings were over. In granting the application for certiorari and an order for mandamus, the Supreme Court nonetheless imposed condition that the name of the young person and any other information that tended to identify him was not to be published. [69] Both of these cases are distinguishable. In both instances the media sought access to records which had already been the subject-matter of proceedings in open court. Here access is being sought to process which has yet to produce any information or record. And there is very real risk that should the public and the media be permitted to attend this process, the process itself will be rendered useless and will fail to produce any meaningful information or record. CONCLUSION: [70] comment was made by counsel on behalf of the media to the effect that it is not appropriate for conference to hinge on the cooperation of young person. The reality, however, is that it does just that. It also hinges on the cooperation of all others who have vital interest and role in the conference. [71] Going back to the Dagenais/Mentuck test, conclude, based on the foregoing, that an exclusion order is necessary to prevent serious risk to the administration of justice. There will be serious, real and imminent risks to the administration of justice if this conference is open because it will not produce the desired results. [72] There are no alternative measures which could prevent or reduce the risk of non-participation by the invitees to the conference. ban on the publication of the identity of the young person and the protection of record provisions in the YCJA do nothing to comfort or protect professionals bound by legal and ethical obligations related to confidentiality. [73] If the Court had the power to order attendance and order participation by way of subpoena wonder whether, even under those circumstances, we would be able to achieve the desired results. suspect there would not be the same spirit of cooperation or forum that encouraged frank and open dialogue amongst the participants. [74] The benefits of an exclusion order, obtaining vital information and recommendations needed to assist the court in arriving at a determination on sentencing, outweighs the deleterious effect of restricting the public’s right to freedom of expression and freedom of the press. There is no concern that such an order would detrimentally affect T.C.’s fair trial interests. In fact, an exclusion order will likely ensure that the best possible information is before the Court. [75] This is one of those rare circumstances in which an exclusion order is necessary to prevent serious risk to the administration of justice and the benefits of the order outweigh its drawbacks. This is in my view, reasonable limit on the open court principle, all things considered. [76] An order is granted pursuant to s. 132 of the YCJA excluding the public and the media from the pre-sentencing conference in relation to T.C. scheduled for December 11, 2006.
A young person who suffered from considerable mental health issues and was in the permanent care of the Minister of Community Services applied to have the court exclude the public and the media from her court convened pre- sentencing conference. The purpose of the conference was to assemble various professionals from diverse fields to discuss the complex issues surrounding the young person and to provide recommendations to the court as to an appropriate sentence. Various of the professionals had expressed their concern as to their ability to participate in the conference if the media was present. Application for access by the media denied; order granted excluding the public and the media from the pre-sentencing conference; the benefits of an exclusion order outweigh the deleterious effect of restricting the public's right to freedom of expression and the freedom of the press. Although the court convened hearing is a public proceeding to which, prima facie, the open court principle applies, the attendance, cooperation and participation of the invitees to the conference (all professionals who were bound by laws, policies and agreements of confidentiality) was strictly voluntary and many, if not all, would be unable and unwilling to participate in a conference that was open to the public and the media. The administration of justice was furthered by the court obtaining the best possible information from those identified as best able to provide it so that recommendations flowing from the conference would lead to the best sentence for the youth. There were no alternative measures which would prevent or reduce the risk of non-participation by the professionals.