S.K. v. Toronto Anti-Violence Intervention Strategy, 2010 HRTO 1270

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.K. by his next friend A.K.

Applicant

-and-

Toronto Anti-Violence Intervention Strategy and Kevin Sarjoo

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: June 3, 2010 Citation: 2010 HRTO 1270 Indexed as: S.K. v. Toronto Anti-Violence Intervention Strategy

1This is an Application filed on April 3, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The allegations in the Application centre on events related to the arrest of S.K. by the respondents. This Interim Decision deals with a Request for an Order During Proceedings (the "Request") filed by the respondents requesting an extension of time and a stay of the Application in order to file a Response. The respondents further request that the names of the applicant, a minor, and his next friend who filed the Application, be anonymized in the Tribunal's decisions and correspondence.

2The Application names the Toronto Anti-Violence Intervention Strategy as a respondent in addition to Police Constable Kevin Sarjoo. The respondents are directed to immediately advise the Tribunal and the applicant of the properly named legal entity responsible for this Intervention Strategy program.

Request for an Extension of Time to file a Response and a Stay of the Application

3The respondents request more time to file a Response. The respondents have indicated their intention to file an application in the Ontario Court of Justice seeking a Court order allowing the parties to access, refer to and use certain records in responding to the Application. The respondents submit that as the applicant was between the ages of 12 and 18 years old at all times material times to the Application they need a Court order to obtain certain records pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended (the "YCJA"). The respondents rely on Section 118 of the YCJA, which provides:

Except as authorized or required by this Act, no person shall be given access to a record [including police and Court records] … and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.

4The respondents state that they have identified nine police officers who may have had dealings with the applicant and who may have information relevant to the allegations in the Application including a range of potentially relevant documents. The respondents submit that Section 118 of the YCJA prevents the respondents from referring to or disclosing these records in any Tribunal proceeding as the records would disclose the identity of S.K.. As a consequence, the respondents state that they intend to seek a Provincial Court order authorizing the disclosure of records and information to the parties to the Application.

5The respondents state that a Provincial Court application will be heard on June 10, 2010, which accommodates the Court schedule, counsel's schedule and provides sufficient time to serve and file the Court application materials. A decision would not be rendered until sometime thereafter. The respondents attached a draft notice of their Court application with their Request.

6The respondents request that the Tribunal stay the Application pending the disposition of the Court application and extend the time of filing a Response until 21 days after the receipt of the Court order. In the alternative, the respondents request an order extending the time to file a Response to 21 days following the disposition of the Provincial Court application and the receipt of the Court order. In the further alternative, the respondents request an order extending the time for filing a Response to 30 days following the Tribunal's Interim Decision disposing of the respondent's Request.

7The respondents submit that the applicant would not suffer any prejudice as a result of any of the orders being sought. The applicant has not filed a Reply to the respondents' Request and the time for doing so has elapsed.

8Parties before the Tribunal have identified the need for Court orders under the YCJA for the purposes of accessing, referring to and using records for use in Tribunal proceedings and have obtained such orders. See F.Z. v. Toronto Police Services Board, 2009 HRTO 535; K.F. v. Dufferin-Peel Catholic District School Board, 2008 HRTO 179. Having regard to the issues in this Application, the Tribunal accepts that the respondents require such a Court order for the purposes of obtaining and referring to records related to S.K. in the preparation of their Response.

9Having regard to all the circumstances, the Tribunal will extend the deadline for the filing of the receipt of the Response. The respondents will have 21 days following the disposition of the respondents' application to the Provincial Court and the receipt of the Court order, or 45 days from the date of this Interim Decision, whichever first occurs, to file their Response.

10The respondents are specifically directed to file a copy of the Court's order with the Tribunal within three days of receiving it.

11The Tribunal does not find it necessary to make any further order including the request for a stay.

Request for Anonymization

12Rule 3.11 of the Rules states that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

13The applicant was a minor at the time of the time of the events giving rise to the Application. Because the applicant was a minor when he was charged this is a matter to which the YCJA applies. The YCJA prohibits the publication of the identity of persons charged under the YCJA who are under 18 years of age and that would lead to the identification of a person charged.

14It is not clear when or if the applicant has turned 18 years of age. However, he was a minor when he came into conflict with the criminal justice system and in my view these are circumstances that justify the anonymization of the applicant and his next friend. The Tribunal shall use initials to identify these individuals in its decisions and correspondence and the style of cause is amended accordingly.

15I am not seized of this matter.