Often times in a trial, the credibility of a witness is an important issue. The lawyers may seek to attack the credibility of a witness by asking them questions about their criminal record (If they have one). For example, if John Smith swears that he saw my client stealing from a grocery store, it might be helpful to highlight the fact that he himself has a criminal record for perjury (lying to a court). In those circumstances, John Smith’s previous criminal conviction for perjury, is relevant to whether he is a credible a witness in my client’s trial.
While the law has long recognized the relevance of a witness’ criminal record to their credibility, things play out a little differently when the witness’ criminal record is not a record that they have accrued as an adult, but instead, as a youth.
This was the situation the British Columbia Court of Appeal dealt with in the recent case of R. v. Hammerstorm  B.C.J. No. 1258. In Hammerstorm, the Court of Appeal considered whether any protections should be afforded to a witness with a youth criminal record. In other words, if we want to make sure the accused gets a fair trial, and we know a witness’ record is relevant to their credibility, should the defence lawyer have carte blanche to cross-examine a witness on that record even if it’s a youth record? The Court of Appeal answered this question with a no. While a youth record is relevant to a witness’ credibility and while a defence lawyer can use it, they do not have carte blanche to do so. Instead, the Court ruled that a lawyer cannot cross-examine a witness in relation to his or her youth record without first seeking the permission of a youth court judge to access and use the record for that purpose pursuant to the rules set out in section 6 of the Youth Criminal Justice Act.
The Youth Criminal Justice Act includes a comprehensive set of rules pertaining to how, when, and why a youth criminal record can be accessed. With those rules the YCJA seeks to limit the use of a youth record in order to ensure (among other things) a young person’s privacy. It also importantly requires that the young person be notified when someone is seeking access to their record.
In coming to their conclusion the Court of Appeal highlighted the importance of enhanced privacy rights in relation to youth records, stating that:
one of the principles of the YCJA is that the privacy rights of young persons are protected so as to protect them from stigmatization and encourage their rehabilitation. It would be inconsistent with the language, structure, and purpose of the YCJA to find that the provisions governing use of records are completely divorced from the provisions governing access to those records. There would be no protection of a young person’s privacy if an accused could use the records without restriction.
With Hammerstorm, the Court of Appeal reiterated that the only way to access and use a youth record is by jumping through the hoops set up in the Youth Criminal Justice Act, regardless of the purpose for which the youth record will be used. The rules relating to youth records cannot be circumvented.