By donalee Moulton

The Nova Scotia Court of Appeal has decided that a young man shall not remain nameless. In a case that has garnered interest from the legal community and the media, Justice Joel Fichaud dismissed an application for continuation of a publication ban. That ban would have prevented the name of a young offender who was sentenced as an adult from being made public until the appeal of his sentence was completed.

“Under the Youth Criminal Justice Act, a young person who receives an adult sentence is no longer protected by a statutory publication ban on his or her identity.

In this case, the young person appealed his adult sentence and sought a ban on publication arguing that if it was not granted, the protection of his confidentiality would be forever lost if he is ultimately successful on appeal yet if the media were permitted to publish his name now,” said Nicole Godbout, an associate with Boyne Clark in Dartmouth who was one of two lawyers representing the Canadian Broadcasting Corporation.

The defence’s argument did not prevail, however. “The problem with (that) argument is that at some point in time you have to release the identity, and parliament has said that this is when the sentence is handed down,” said David Coles, a partner with Boyne Clarke, who represented the CBC.

“The ‘empty right’ argument didn’t carry the day in the court of appeal,” noted Nancy Rubin, a partner with Stewart McKelvey in Halifax, who represented The Halifax Herald Limited. “Justice Fichaud confirmed that Parliament intended that the ban terminate, and there was no stay pending appeal. Just because he was a young person, one couldn’t presume a ban should be granted.”

The decision relied on the Dagenais/Mentuck test to assess the evidence, which requires proof of the “necessity” of the ban to justify intrusions in the open court principles. In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck, [2001] 3 S.C.R. 442, the Supreme Court formulated the principles to govern applications for publication bans in criminal proceedings. In Mentuck, Justice Frank Iacobucci refined the two-pronged test that requires the applicant to demonstrate that their rehabilitation would be hampered by publication of their identity.

“Parliament has not established a statutory process to empower a judge to issue a discretionary ban for a recipient of an adult sentence, as exists after a youth sentence by s. 75 [of the YCJA],” Justice Fichaud wrote in his 18-page decision.

“This policy choice by parliament does not prevent a young person who has received an adult sentence from applying to a court for a publication ban on his identity pending the result of his appeal,” he added. “But there is no legislated presumption that the balance of interests dictates a publication ban. Rather the applicant must satisfy the Dagenais/Mentuck test and its onus of proof.”

In R. v. G.D.S., 2007 NSCA 94, the appellant failed to satisfy that test. “The onus is on the applicant to show that the need for confidentiality is justified over the public interest in openness. In this case, the young person did not satisfy the court that his rehabilitation would be hampered by publication of his identity,” said Godbout. “Therefore, the court held that the balance weighed in favour of openness as opposed to confidentiality.”

That decision, Coles pointed out, “reaffirms that a common law ban is available but that the situation must be extraordinary.”

“That was not the case here,” he noted. “The presumption is on openness and knowing who we incarcerate in our adult jails.”

The decision has implications for lawyers around the country. “No case has authoritatively decided this [before], and this is relevant to any case involving youth with an adult sentence,” said Peter Rosinski, an attorney with the Nova Scotia Public Prosecution Service, who represented the respondent.

“This case is the only one which solely reviews the scheme of the YCJA, the court’s jurisdiction and properly applies the discretionary test,” noted Rubin.

Reasons: R. v. G.D.S., [2007] N.S.J. No. 390.

“This article originally appeared in the May 27, 2007, issue of The Lawyers Weekly published by LexisNexis Canada Inc.”