An identity that should be disclosed

August 4, 2016   ·   0 Comments

UNDER CANADA’S YOUTH Criminal Justice Act (YCJA), the identity of any young person under the age of 18 cannot be disclosed, unless the youth is at least 15 years old and his or her alleged crime is so serious that a court determines the accused will be tried as an adult and if convicted face adult sentencing.

That’s clearly as it should be. One need search no further than precisely 50 years ago when 14-year-old Steven Truscott was wrongfully convicted in the death of classmate Lynne Harper and sentenced to death.

Throughout the trial and while he languished in prison after the death sentence was commuted, his identity was not just known but was known so widely that for many years following his release he had to be  given a new identity.

In those days Canada still had the hangman’s noose and it was not until 1982 that Parliament passed the Young Offenders Act, which the YCJA replaced in 2003.

Section 110 of the current Act outlines privacy in relation to the identity of young offenders, access to their criminal records, and disclosure of their personal or trial information. Trial information can be published, but identifying information about the accused cannot, to prevent stigmatization of young offenders, which has been found to hinder their rehabilitation of youth.

However, under the Act’s Section 111, the ban on identification extends to “the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.”

A child victim’s identity may be published only after he or she turns 18 or with the consent of the child’s parents.

In 2008, the privacy clause was tested when several users of Facebook posted the identities of murdered Toronto teenager Stefanie Rengel and her accused killers, Melissa Todorovic, 14, and David Bagshaw, 17, in defiance of both the publication ban and the fact that the police had not yet received the consent of the victim’s family to release her name to the media. While police and Facebook staff tried to comply with the Act by deleting such posts, they noted it was difficult to effectively police the individual users who repeatedly republished the information.

In that case, the victim’s parents later did give consent and both accused were tried and convicted as adults, so all three names were publishable.

The privacy provisions may well be tested again as a result of the recent horrific crash outside Teen Ranch that took the life of a 12-year-old girl and left the 14-year-old driver facing multiple charges ranging from criminal negligence and dangerous driving causing death to possession of a stolen car.

One need not think back further than a few months ago to the case of Marco Muzzo, the drunk driver who took the lives of three children and their grandfather, to realize the importance publicity can achieve. Mr. Muzzo happened to be 29 at the time, but what if he had been just 17? Had that been the case, prompt identification of the victims would have been prohibited by the YCJA.

We have never understood the need for any restriction on our right to identify a person who has met a tragic death, be it a homicide or a traffic fatality, once next of kin have been notified by police.

It will be interesting, indeed, to see whether identity of the two persons involved in the recent fatality will ever be disclosed as the result of parental consent and a judicial determination that the young driver should be tried as an adult.

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