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R v NM [access to youth records beyond access period, s 119 YCJA]

In the context of a homicide trial of a young adult in the Superior Court of Justice, the Crown had in its possession the youth record of the accused, which it had obtained during the statutory access period provided for under section 119 of the Youth Criminal Justice Act. The access period had expired by the time trial commenced, meaning that the records could only be accessed and disclosed by meeting a stringent statutory test under section 123 of the YCJA and that the records ought to have been destroyed at the close of the access period by the RCMP.

The Crown sought to enter the youth record into evidence and cross-examine the accused on them for the limited purpose of undermining his credibility, and brought an application before the youth court for authorization to access and disclose the records. Defence counsel opposed the request, and JFCY intervened in the youth court application in order to provide submissions on the meaning and proper operation of the privacy provisions of the YCJA.

The youth court judge granted the application, notwithstanding the minimal nexus of the records to the issue of credibility given both the nature of the offences and the presumption of diminished moral blameworthiness. Defence counsel sought judicial review of the decision by way of an application of certiorari, which was dismissed by the Superior Court.

The matter is now on appeal to the Court of Appeal for Ontario, where JFCY intends to seek leave to intervene again.

History of case:

  1. Ontario Court of Justice (OCJ), Brampton 00766. Oral decision delivered on March 31, 2022.
  2. Judicial review / application for certiorari of OCJ decision before the Superior Court of Justice (SCJ). Oral decision delivered on April 6, 2022.
  3. SCJ decision currently on appeal to the Court of Appeal for Ontario (no court file number yet assigned).
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