Aug 7, 2019

R. v. BM, 2019 ABPC 190 - Summary

R v BM, 2019 ABPC 190 (CanLII)

While the the identity of the accused is rarely protected in criminal trials of adults, it is an imperative of the Youth Criminal Justice Act. Section 110(1) provides 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." When the State breaches this obligation, the accusations against the youth accused can be stayed.

In this case, the accused pleaded guilty to having manipulated the mother of a seventeen-year-old woman going to the same school into taking and sending them nude pictures of her daughter, by posing as a model agent. After their arrest, however, the accused was identified as part of a police press release identifying suspects arrested for child luring. It read as such: "Thirteen suspects have been arrested for child luring and similar offences following a series of investigations by ALERT’s Internet Child Exploitation (ICE) unit. The arrests took place as part of an eight-month proactive initiative by the ICE unit that targeted suspects allegedly trying to arrange for sex with children." [par. 24] It "prominently state[d] the first and last name, age and town or city of residence of all thirteen suspects" [par. 27], but the youth accused was erroneously identified as being 18, and not 17 [par. 28].

It took over seven hours for the information that the accused was a minor to reach the police and the press release to be corrected to remove the identity of the youth accused. The police attempted, to no avail, to have some of the already shared information removed. But, "[i]t is virtually impossible to stuff the genie back into the bottle once information has been published on the internet." [par. 69] This information can still be found online.

This, as the Crown conceded, constituted a breach of their right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms [par. 46]. Justice Patricia Ellen Kvill, therefore, had to determine the appropriate remedy. Noting her discretionary power to grant or not a stay of proceedings [par. 51], Justice Kvill went on to consider the three-part test formulated in R. v. Babos, 2014 SCC 16.

Regarding the first prong, whether there is a prejudice to the integrity of the Justice System, the Court notes that "[a] publication ban is required not only to prevent a youth from being stigmatized but to protect the whole framework and philosophy behind the Youth Criminal Justice System." [par. 56] Indeed, "[t]he Youth Criminal Justice Act, at its heart, intends to not only hold young offenders responsible for their crimes but also to ensure that these youth afforded the best opportunity to renounce crime and become good citizens" [par. 58], and "[t]hat goal becomes more difficult when youths are stigmatized as criminals." [par. 59] As such, "[t]here is prejudice to a particular young person where there has been a release of information naming that youth. But there is prejudice to the whole youth justice system when the state is responsible for the release of this information." [par. 60]

The Court considers that the conduct of the police, especially given how easy it would have been to verify the disseminated information prior to the release, was reckless. Indeed, "[o]ne would have thought that great care would be taken by ALERT to ensure that misleading information about a suspect is not contained in their media notices, particularly when the notice deals with reviled sex crimes against children." [par. 64] Such "[c]areless acts by government agencies shake the integrity of the youth justice system." [par. 70]

The Court agrees that a stay is warranted given this violation. It "must be forcefully denounced." [par. 72] As the Court put it, "[y]oung offenders must follow the law", but "[s]o too must agencies of government" [par. 73], and "[a] stay of proceeding is the only appropriate vehicle to express that notice to state agents." [par. 74]