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Sentencing conferences convened by youth court judges are part of the public court process and open to journalists, a Nova Scotia judge ruled in January 2007. But the media can be excluded when concerns arise about confidentiality and the administration of justice. By Dean Jobb.

Sentencing conferences convened by youth court judges are part of the court process and open to journalists and members of the public, but concerns about confidentiality and the administration of justice can slam the door.

Judge Pamela S. Williams of the Nova Scotia Provincial Court reached those conclusions in R. v. T.C., a January 2007 ruling on media access to sentencing conferences created by s. 41 of in the Youth Criminal Justice Act.

“They’re new, they’re explicitly provided for in the YCJA, they never were in the Young Offenders Act,” says Nancy Rubin, who sought access to a conference on behalf of the Halifax Chronicle Herald.

“She has confirmed that these s. 41 conferences, where they’re convened by a judge, are part of the open court process and therefore they’re presumptively open,” explained Rubin, who practices with the Halifax office of Stewart McKelvey Stirling Scales.

“It doesn’t necessarily extend to all conferences and it doesn’t necessarily extend to all s. 41 conferences, but where they’re convened by a judge, they should be open.”

But the lawyer who acted for another Halifax newspaper, The Daily News, warns the ruling may be of little use to journalists seeking access to conferences in future.

Alan Parish of Burchell Hayman Parish, who points out that a publication ban already protects the identity of youths dealt with under the act, says confidentiality rules are a fact of life for psychiatrists, social workers, nurses and other professionals who deal with young offenders.

“If you follow that through to its logical conclusion, you see that if any of the professionals have any confidentiality concerns, these conferences stay private.”

The Herald and Daily News applied for access to a conference involving T.C., a deeply disturbed 16-year-old girl facing sentencing for 31 offences, including assault, uttering threats, damaging property and violating court orders while in group homes.

The girl is in the permanent care of the provincial Department of Community Services, and the case attracted intense media attention when the minister was summoned to attend the conference to discuss government services for troubled teens.

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The girl’s lawyer sought the conference, which the YCJA authorizes to seek sentencing recommendations from social workers, psychologists, corrections officials and other experts on how to deal with a youthful offender.

Under s. 19 of the act, a judge, police officer, justice of the peace, prosecutor or youth worker can convene a conference at any point in a case “to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, including the review of sentences, and reintegration plans.” But only a judge can convene a sentencing conference.

Judge Williams reaffirmed the importance of the open court principle and applied the Dagenais/Mentuck test, formulated by the Supreme Court of Canada to balance the Charter right to freedom of the press against competing interests of confidentiality and the proper administration of justice.

As the Supreme Court affirmed in Toronto Star Newspapers v. Ontario [2005] S.C.J. No. 41, the test applies to any discretionary order, sought at any point in the court process, that limits freedom of the press.

For Judge Williams, the “inescapable conclusion” was that a judge-ordered sentencing conference is part of the court process. “When a judge attends a court-convened conference, receives input and recommendations from various parties, and is mandated to consider them in the course of deliberations in arriving at an appropriate youth sentence, it is, prima facie, a public proceeding.”

But, she added, not all conferences can be held in public. Attendance is optional and, in this case, the court was told that confidentiality policies would prevent a doctor and social workers who have dealt with T.C. from attending. The girl also refused to consent to having confidential information disclosed in a public forum.

Judge Williams refused access to protect the administration of justice. “There is a 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.”

The judge ruled the sentencing hearing for T.C. would be open to the public, but Parish says that may not reveal all the information used to formulate the sentence. “The media and the public aren’t going to know what exactly was said to her at these conferences and be able to gauge whether the sentence is appropriate.”

Judge Williams called it “one of those rare circumstances” where an exclusion order is necessary. Media lawyer Rubin says that finding could open the doors to future conferences and to sentencing circles convened for aboriginal youth.

“It’s sort of a good news/bad news case. Good news, I think she got the law right – in terms of the background and the presumptively open and the importance of the media.” The bad news, she added, was the refusal to grant access based on the testimony of a single social worker, hearsay and information conveyed through counsel submissions. “The exercise of discretion was based on pretty slim evidence.”

This article originally appeard in The Lawyers Weekly.