IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. M.C.R., 2004 NSSC 25
Date: 20040109
Docket: CR210034
Registry: Halifax
Between:
Her Majesty The Queen
v.
M.C.R.
Restriction on publication: It is ordered that there shall be a ban on the publication of all medical, psychological, pre-disposition and pre-sentence reports presented to this court, including the Family Division, except those parts or portions of these reports specifically quoted in the sentencing decision.
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Judge: The Honourable Justice David W. Gruchy
Heard: January 9, 2004, in Halifax, Nova Scotia
Oral Decision: January 9, 2004
Written Decision: January 30, 2004
Counsel: Eric R.Woodburn and Eric G. Taylor, for the Crown
Chandrashakhar Gosine, for MCR
Gruchy, J.: (Orally)
[1] This is the decision in R. v. MCR or M. C. R. with respect to a ban on publication. On January 9, 2004 I sentenced M. C. R., a young person, and I mean young in the practical sense, for the offence of attempted murder. For the purposes of this decision I need not set forth the details of that sentence. (For the benefit of the Applicants, I have transcribed the sentence and it is available to them.)
[2] During the sentencing procedure as a publication ban was noted in the file, I questioned counsel concerning the status of that ban. Having received submissions from counsel a representative of one of the newspapers present asked to be heard. She informed me that counsel for her employer had advised that the publication ban had ceased to exist upon the transfer of M. R. from the Young Offenders Court to the Adult Court. I requested that she arrange to have such counsel who wished to be present appear before me later that day.
[3] Upon the appearance of counsel, and subsequent to the passing of the sentence, various media representatives appeared and made submissions to me. As I was concerned about the notice to other media and in keeping with the decision of the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, and in keeping with the protocol established by the Supreme Court of Nova Scotia with respect to notice to the media, I set this matter over until Friday, January 16, 2004 so that notice could be given and submissions could be heard.
[4] It might be wise to repeat the concern I expressed at the time of setting the matter over. I said, “It is my view that the publication of the circumstances, the publication of his identity, will have an adverse effect on him.” I then referred to “the publication of details”. I might say as well that those remarks of mine followed the exchange which I referred to earlier between myself and counsel when I did question the status of the various reports as they were being presented to me.
[5] I am satisfied that after the transfer of a young person to an adult court the ban on the publication of that young person’s name is terminated. (See s. 38 (1) of the Young Offender’s Act and s. 110 (2) of the Youth Criminal Justice Act. This latter subsection reads as follows:
110(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.
2 - Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence.
[6] I have also concluded that a publication ban by virtue of s. 486(4.1) of the Criminal Code is not applicable in this case.
[7] Accordingly, I have concluded that statutory, the ban on publication concerning the young offender no longer exists and ceased to exist at the latest when he received an adult sentence.
[8] But in this case it is necessary to examine the chronology of certain events and I will now review them.
[9] M. R. was born on October [...], 1986. The offence for which he has been sentenced occurred on June 29, 2002 when he was 14 years old.
[10] The information charging various offences was laid on July 9, 2002. At that time the Young Offenders Act was still in effect as was s. 38 thereof, referred to above.
[11] On August 7, 2002, psychological assessments were forwarded to the Youth Court, as authorized or mandated pursuant to s. 13 of the Young Offenders Act in contemplation of an application to transfer to Adult Court. A report dated February 7, 2003 marked ‘Private and Confidential’ from a psychologist to defence counsel was received.
[12] Additional reports dated February 12, 2003 were received by the Court, one “updating” a previous report and the other reporting on behaviour and observations of M. R. at the youth facility.
[13] On April 1, 2003 the Young Offenders Act was repealed and replaced by the Youth Criminal Justice Act.
[14] On May 12, 2003, a “pre-disposition report” was prepared for the Court in apparent compliance with the Young Offenders Act.
[15] On June 25, 2003, a psychological report and assessment was prepared for the Court updating previous reports.
[16] On July 16, 2003 a further psychological report was prepared for defence counsel reviewing previous reports and commenting on their content.
[17] On July 25, 2003, Chief Justice Kennedy transferred the trial of this matter to Adult Court.
[18] On December 2, 2003 M. R. re-elected to be tried by a Supreme Court Judge sitting alone.
[19] He later pleaded guilty to the charge of attempted murder.
[20] A pre-sentence report dated January 7, 2004 has been received by the Court.
[21] I am concerned about the effect of these reports will or may have on the rehabilitation prospects of this boy and possibly on the administration of justice.
[22] This Court has the inherent jurisdiction, in certain circumstances, to ban publication of certain information coming before it and to control its own process.
[23] Since the passing of the sentence, I have had the benefit of becoming fully aware of the decision of Chief Justice Kennedy when he transferred M. R. to the adult court. I have been struck by the identical conclusions reached by Chief Justice Kennedy and myself as to the manner in which we are to approach the subject of the sentencing and of the treatment of this boy.
[24] Chief Justice Kennedy and I have both made mention of this boy’s horrendous and difficult background. We have both remarked on the ravages of cocaine addiction upon his mother and his family. We have both recognized the inability of his family to care for and to give guidance to this boy, virtually from the moment he was born. Chief Justice Kennedy had the advantage of hearing psychologists give their evidence to him, whereas I was restricted to reading the various reports which reflected the evidence given by them to Chief Justice Kennedy.
[25] Chief Justice Kennedy, in addressing the matter of the transfer of this boy to adult court, referred to the opinion of Doherty J.A. of the Ontario Court of Appeal in R. v. JC [2000] O.J. 471. While that decision deals with the factors to be considered in a transfer application, those same factors are appropriate for consideration in the passing of sentence. Justice Doherty commenced his consideration of this subject by appropriately setting forth the factors underlying the principles of the Youth Criminal Justice Act. He set them forth and they are as follows:
The factors identified in that section are applied in conjunction with the broad principles underlying the Act: see R. v. M.(S.H.) supra, at pp. 541-42. Section 3 of the Act lays down those principles:
3(1) It is hereby recognized and declared that
(a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future;
(a..1) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;
(b) society must, although it has the responsibility to take reasonable measures to prevent criminal conduct by young persons, be afforded the necessary protection from illegal behaviour;
(c) young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special needs and require guidance and assistance;
(c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young persons’s offending behaviour;
(d) where it is not inconsistent with the protection of society, taking no measures or taking measures other than judicial proceedings under this Act should be considered for dealing with young persons who have committed offences;
(e) young persons have rights and freedoms in their own right, including those stated in the Canadian Charter of Rights and Freedoms or in the Canadian Bill of Rights, and in particular a right to be heard in the course of, and to participate in, the processes that lead to decisions that affect them, and young persons should have special guarantees of their rights and freedoms;
(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interest of their families;
(g) young persons have the right, in every instance where they have rights or freedoms that may be affected by this Act, to be informed as to what those rights and freedoms are; and
(h) parents have responsibility for the care and supervision of their children, and, for that reason, young persons should be removed from parental supervision either partly or entirely only when measures that provide for continuing parental supervision are inappropriate.
(2) This Act shall be liberally construed to the end that young persons will be dealt with in accordance with the principles set out in subsection (1).
[26] Chief Justice Kennedy addressed certain questions posed by Justice Doherty as follows:
Is the young person presently a danger to the public?
[27] Chief Justice Kennedy said:
On the basis of the material before me and with which I entirely agree, M. C. R. is still a danger to the public.
Can the young person be rehabilitated so that he or she ceases to pose a danger to the public?
Chief Justice Kennedy concluded, and I respectfully agree:
That he can be rehabilitated, provided he is given the opportunity to do so by the Youth Facility.
And, I add, “provided he is given the opportunity to do so by the public”. I will return to that subject below.
[28] Can the rehabilitation be achieved within the disposition scheme established under the Act? Chief Justice Kennedy hoped that the rehabilitation could be achieved, as do I. We both express reservations.
Can the public be adequately protected through the disposition scheme established under the Act during the rehabilitative process?
[29] I again respectfully agree with Chief Justice Kennedy that the public can be protected but will only be protected if and until rehabilitation has been achieved.
[30] The principles underlying the Youth Criminal Justice Act are not inconsistent with the fundamental purposes of sentencing as reflected by s. 718 of the Criminal Code and to which I referred during the sentencing of this young man.
[31] The fourth objective of the principles is “...to assist in rehabilitating offenders.”
[32] During the sentencing procedure, crown counsel and counsel for the young person presented to the Court detailed reports of psychological and psychiatric assessments which I have mentioned above. These reports contain deeply personal assessments and evaluations of this boy. They explore his entire background and that of his family and indeed, of some of his associates. They express difficult and disturbing views of the boy’s behaviour and their very guarded prognosis for his future.
[33] This boy was transferred to an adult court. That fact does not make him an adult, but it has the effect of removing him from protection afforded by the Youth Criminal Justice Act. Indeed, it was clear by Chief Justice Kennedy’s decision with which I fully and respectfully agree, that a primary purpose for transferring this boy to an adult court was so that he could be retained as long as possible in a youth facility where he can obtain the best help available to him. It was clear to Chief Justice Kennedy, as it is clear to me, that incarceration in an adult facility would be counterproductive for this particular boy.
[34] I am concerned that the publication of the details of this boy’s psychological background and makeup and the details of his prognosis would become self-fulfilling prophecies. These reports were prepared as assistance to the Court on how best to treat M. R.. Some of the reports were obviously and clearly prepared on a confidential basis. The earlier reports were prepared under the regime of the Young Offenders Act. Even those prepared under the Youth Criminal Justice Act relied extensively and heavily on the earlier reports.
[35] The medical and psychological reports prepared before April 1, 2003 were subject to the provisions of s. 13 of the Young Offenders Act. Subsection (4) of that section deals with and identifies persons to whom such reports shall be disclosed. Subsection (7) mandates the withholding of the reports where the Court was satisfied “that the disclosure of all or part of the reports would seriously impair the treatment or recovery of the young person.”
[36] Section 14 of the Young Offenders Act deals with pre-disposition reports and identifies persons to whom the report shall or may be given and in particular by ss. 8(b), authorizes release of the report to any person who “...in the opinion of the Court, ... has a valid interest in the proceeding.” Subsection (7) authorizes the withholding of a report from a private prosecutor. These provisions would have no meaning if the reports are public.
[37] Similarly s. 34(7) and s. 40 of the Youth Criminal Justice Act identifies persons to whom assessments and pre-sentence reports shall be given. While a pre-sentence report forms part of the record of the case, the direction that it should be given to identified recipients and may be withheld from a private prosecutor suggests strongly that it will not automatically be public.
[38] It is my view that the thrust of these sections in both the Young Offenders Act and the Youth Criminal Justice Act is to the effect that dissemination of these reports would be limited to the recipients identified.
[39] Arguably, the potential confidentiality afforded by these sections of the two Acts has been lost by virtue of the transfer to adult court.
[40] I recognize that I have been asked by this Application to “...curtail the freedom of expression of third parties... .” Chief Justice Lamer, in Dagenais, expressed the view that the common law rule concerning the Court’s inherent right to ban publication must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected charter rights. He said:
The modified rule may be stated as follows:
A publication ban should only be ordered when:
(a) such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk;
(b) the sanitary effects of the publication ban outweighed the deleterious effects to the free expression of those affected by the ban.
[41] This adaptation of the common law has since been reconfigured by the Supreme Court of Canada in R. v. Metnuck, [2001] 3 S.C.R. 442. I will now quote extensively from the opinion of Justice Iacobucci:
However, the common law rule under which the trial judge considered the publication ban in this case is broader than its specific application in Dagenais. The rule can accommodate orders that must occasionally be made in the interests of the administration of justice, which encompass more than fair trial rights.....
The Dagenais test requires findings of (a) necessity of the publication ban, and (b) proportionality between the ban’s salutary and deleterious effects. However, while Dagenais framed the test in the specific terms of the case, it is now necessary to frame it more broadly so as to allow explicitly for consideration of the interests involved in the instant case and other cases where such orders are south in order to protect other crucial aspects of the administration of justice. In assessing whether to issue common law publication bans, therefore, in my opinion, a better way of stating the proper analytical approach for ceases of the kind involved herein would be:
A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
This reformulation of the Dagenais test aims not to disturb the essence of that test, but to restate it in terms that more plainly recognize, as Lamer C.J. himself did in that case, that publication bans may invoke more interests and rights than the rights to trial fairness and freedom of expression.
[42] I will address each consideration as set forth by Justice Iacobucci in Mentuck:
(a) Is there a serious risk to the administration of justice posed by the publication of the various reports? The administration of justice clearly includes the possible rehabilitation of an offender. That is particularly true where the offender although transferred to an adult court, is still in fact a young person.
[43] Chief Judge Curran said in R. v. Prosper, [2001] N.S.J. No. 508, when dealing with an adult aboriginal offender and considering the risk to the administration of justice, and only with respect to a potential ban on publication of identity:
In upholding bans on distribution of records containing the identity of young persons charged under the Young Offenders Act, the Supreme Court of Canada has described the identity of young persons as only a “sliver of information”: N.(F), Re (2000), 35 C.R. (5th) 1, at para. 12. It must be borne in mind, however, that the rehabilitation of the young person is the overriding goal of the Young Offenders Act and publicly identifying the young person is likely to limit the possibility of rehabilitation. Rehabilitation is one of the goals of sentencing under the Criminal Code, but it is not the only one, and identifying the accused is not inconsistent with other goals. In fact, identifying the accused could be particularly important for the goals of deterring the accused person from committing further offences and denouncing the crime.
[44] In the case before me that “sliver of information” has clearly already been made public. Chief Judge Curran concluded in part that the offender was an adult and her public identification would not harm her or the administration of justice.
[45] In this case I reached the opposite conclusion with respect to the reports. These reports were prepared for the benefit of the Court and of the young offender. The reports dated before April 1, 2003 were prepared when confidentiality could reasonably have been anticipated by the authors. The publication of their contents in my view may well inhibit further frank reports. They contain details of other persons, observations and opinions concerning other persons who have not been before the Court. Some of which might be considered to be damaging. Those reports, or the contents of them, were repeated and relied upon in the reports subsequent to the repeal of the Young Offenders Act.
[46] Perhaps more importantly, I am concerned that the publication of the contents of these reports could have damaging effects on this boy’s chances of rehabilitation and this in my view is an important objective of the sentencing procedure for a young person and an important aspect of the administration of justice.
(b) Do the salutary effects of the publication ban of the reports outweigh its effects on the rights and interest of the parties and of the public, as enunciated by Iacobucci, J.?
[47] As I hope I have already made clear it is my conclusion that the publication of these reports would have a far greater deleterious effect on this boy and on the administration of justice than any harm to the public or to the media resulting from a ban on such publication.
[48] I have accordingly concluded that the “salutary effects of the publication ban (of the psychological reports and of the presentence report presented to this Court) outweigh the deleterious effects to the free expression of those affected by the ban”.
[49] In reaching this decision I have examined the availability of any reasonable alternative measures and I have considered in particular the general guidelines suggested by Justice Lamer in Dagenais which I am sure you are all familiar with. In particular, I have (a) given the media standing; (b) reviewed the material at issue, (c) concluded that the proposed ban is necessary in that “it relates to an important objective that cannot be achieved by reasonably available and effective alternative measures”, the important objective being the prevention of publication of material which if published may well have a negative effect on the rehabilitative prospects of M. R. and on the administration of justice: (d) I have considered all other options and find that no reasonable and effective alternative means is available; (e) I have considered all possible ways to limit the ban and have done so; and (f) I have weighed the importance of assisting in the rehabilitation of this young offender and have weighed that objective against the importance of the freedom of expression.
[50] I therefore order that there shall be a ban on the publication of all medical, psychological, predisposition and presentence reports presented to this Court including the Family Division except those part or portions of her reports specifically quoted in the sentencing decision.
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Gruchy, J.