S.L. v. N.B., 2005 CanLII 11391 (ON CA)

THIS IS AN APPEAL UNDER THE YOUNG OFFENDERS ACT AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) No person shall publish by any means any report a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Everyone who contravenes subsection (1) a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or b) is guilty of an offence punishable on summary conviction.

DATE: 20050415 DOCKET: C41064

COURT OF APPEAL FOR ONTARIO

DOHERTY, LASKIN and JURIANSZ JJ.A.

B E T W E E N :

S.L. and L.L. Plaintiffs (Respondents)

• and -

N.B. a.k.a. N.B., A.M. a.k.a. A.M., M.H. and C.C. a.k.a. C.C. Defendants (Respondent)

• and -

THE ATTORNEY GENERAL OF ONTARIO Non-Party (Appellant)

Luba Kowal, Miriam Bloomenfeld and Sean Hanley for the appellant J. Sebastian Winny for the plaintiffs/respondents No-one appearing for the defendants

Heard: October 20-21, 2004

On appeal from the order of Justice Belleghem of the Superior Court of Justice dated October 31, 2003, reported at [2003] O.J. No. 4316.

DOHERTY J.A.:

I

1The principal issue raised on this appeal requires the court to determine whether the provisions in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) governing production of documents by a non-party in a civil proceeding in the Superior Court of Justice (“Superior Court”), or the provisions in the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) referring to access to records made and kept under that Act, control requests for access to such records by a plaintiff in a civil proceeding. The appellant, the Attorney General, submits that the YCJA governs if the material sought constitutes “records” as defined by that Act. The respondents submit that the Rules, supplemented if necessary by the Superior Court’s inherent power to control its own process, determine when a non-party must produce documents in a civil proceeding in the Superior Court, even when those documents are records as defined in the YCJA.

2I agree with the Attorney General’s position. Section 118(1) of the YCJA declares that access to records as defined in that Act is the exclusive province of the YCJA. I see no constitutional impediment to s. 118(1).

II

Procedural History

3By statement of claim dated September 3, 2002, the respondents commenced an action against four named defendants. They alleged that on August 24, 2000, the respondent, S.L. (“S.L.”), a seventeen-year old boy, was accosted and badly beaten by a gang of young men. The gang included the four defendants. The claim alleged that S.L. had suffered serious injuries in the attack. The other respondent, L.L. (“Ms. L.L.”), S.L.’s mother, seeks damages under s. 61 of the Family Law Act.

4By notice of motion dated June 16, 2003, the respondents sought an order requiring the appellant, the Ministry of the Attorney General (the “Attorney General”), to produce all documentation in its possession relating to the incident giving rise to the lawsuit. The Attorney General is not a party to the lawsuit. The motion material indicated that the respondents had been unable to locate three of the four defendants (Mancini, Hughes and Carter). These three defendants had been charged as young offenders and pleaded guilty to those charges arising out of their involvement in the attack on S.L. The respondents contended that the Attorney General and the local police had possession of material relating to the investigation and prosecution of these three defendants and that the material could assist the respondents in their lawsuit in three ways. First, it could help them locate the three defendants for the purpose of serving them with the statement of claim. Second, the material could provide factual details that would assist the respondents in proving their claims. Third, the material could help the respondents identify other individuals, as yet unknown to the respondents, who were also involved in the attack.¹

5After commencing the action, counsel for the respondents requested production of records from the Peel Regional Police Force, which had investigated the assault on S.L. The respondents sought access to those records under freedom of information legislation. The police declined to provide the records and advised counsel that the freedom of information legislation did not apply to those records. The police further advised counsel that access could be obtained pursuant to an order from a youth court judge. Counsel chose instead to pursue production from the Attorney General in Superior Court by way of a motion in the lawsuit.

6The local Crown Attorneys’ office was served with the respondents’ motion for production. When no one appeared for the Attorney General, the motion judge, Dunn J., stood the motion down so that counsel for the respondents could speak to someone in the Crown Attorneys’ office. Counsel spoke with an assistant Crown Attorney who took the position that the motion should be dealt with by civil counsel from the Attorney General’s office in Toronto. Inexplicably, the assistant Crown Attorney declined to appear before Dunn J. to advise him of her position. Instead, counsel for the respondents was left to convey the assistant Crown Attorney’s position.

7On June 26, 2003, Dunn J. ordered production in these terms:

Order to go pursuant to s. 119(1) of the Youth Criminal Justice S.C. 2002 chapter 1 [sic] to allow counsel for both the applicant and the defendant Braithwaite to the records kept under:

s. 114 Youth Justice Court and

s. 116 records kept by Crown Attorney for the Region of Peel

Relating to the incident of Aug. 24, 2000 in which plaintiff was injured to allow documentation of names and addresses of all potential defendants that may be contained in such records and to allow plaintiff to pursue appropriate civil remedies.

8In ordering production, Dunn J. relied on s. 119 of the YCJA and not the Rules or his inherent jurisdiction as a Superior Court judge. Dunn J.’s reliance on s. 119 of the YCJA as authority for the order, tracks the position advanced by the respondents in their motion material. Section 114 of the YCJA referred to by Dunn J. relates to the records of the Youth Justice Court. Section 116 of the YCJA also referred to by Dunn J. is directed to records in the possession of government departments, including the Attorney General’s department.

9Counsel for the respondents provided the assistant Crown Attorney with a copy of the endorsement of Dunn J. Again, inexplicably, the Attorney General’s office took no steps either to appeal the order of Dunn J. or to comply with it. After efforts by respondents’ counsel to obtain the material ordered produced by Dunn J. from the Attorney General proved fruitless, counsel brought a further motion in the Superior Court in September 2003 seeking an order requiring the Attorney General to comply with the order of Dunn J. within thirty days. The motion was brought under rule 60.11.

10Counsel for the Attorney General did appear on this motion. She argued that access to any material constituting a record for the purposes of the YCJA was governed by that Act and that accordingly, applications for access to records had to be made to a youth justice court. Counsel submitted that the Ontario Court of Justice is the youth justice court in Ontario.

11Belleghem J. held that only the Superior Court had jurisdiction to make a production order in the context of a civil proceeding brought in the Superior Court (para. 15). He ordered the Attorney General to produce the documents described in the order of Dunn J. Belleghem J. further held, however, that before the Attorney General produced the material, it should have an opportunity to raise any public interest objections to the production of any part of the record in accordance with the procedure set down in D.P. v. Wagg (2002), 61 O.R. (3d) 746 (Div. Ct.).² Wagg provided a means by which the Attorney General as a non-party could raise objections to production of documents based on public interest claims before one party to the litigation was required to produce those documents to the opposing party.

12The Attorney General appeals from the order of Belleghem J., renewing the contention that access to the records should be determined exclusively by the provisions of the YCJA.

13The respondents cross-appeal from the order of Belleghem J. They submit that he had no jurisdiction to vary the order of Dunn J. on the motion brought by the respondents. Alternatively, the respondents contend that he erred in law in imposing the vetting process described in Wagg on the documents sought by the respondents. The respondents ask that the order of Dunn J. be restored.

14The Attorney General launched its appeal in November 2003. The Attorney General, and for the third time in reference to the conduct of the Attorney General’s office, I use the word “inexplicably”, did not move to stay the order of Belleghem J. pending appeal and took no steps to comply with it.³

15At the beginning of oral argument, the court asked counsel for the Attorney General why the Ministry had not complied with Belleghem J.’s order in the absence of a stay pending appeal. Counsel for the Attorney General could not offer any explanation. The court expressed concerns about hearing the merits of the Attorney General’s appeal given the failure either to obtain a stay of the order or to comply with it. The court granted counsel for the Attorney General a brief adjournment so that she could make some inquiries. The court was particularly concerned that the respondents, some two years after the action was commenced, were still unable to proceed because they were unable to locate three of the defendants.

16Following the brief adjournment, counsel for the Attorney General advised that arrangements had been made to provide counsel for the respondents with the addresses of the three named defendants who had been prosecuted and convicted as young offenders. This information would hopefully allow the respondents to serve those defendants and to carry on with their lawsuit. Counsel for the Attorney General also advised the court that a fourth individual had been charged as a young offender. That person had been acquitted and the Crown indicated that no information concerning that person would be provided to counsel for the respondents.

17The court decided, because of the potential importance of the issue raised on the appeal, that it would hear it on the merits, despite the Attorney General’s non-compliance and inaction.

III

Issues

18There are three issues raised on the appeal and cross-appeal. Logic dictates that they be considered in the following sequence:

• did Belleghem J. have jurisdiction to vary the order of Dunn J.? [issue raised on cross-appeal]
• is production and access to the material sought controlled by the YCJA or the Superior Court under the Rules and its inherent jurisdiction? [issue raised on appeal]
• if the Superior Court controls access and production, is a “Wagg” vetting order appropriate here? [issue raised on cross-appeal]⁴

(a) Did Belleghem J. have jurisdiction to vary the order of Dunn J.?

19The order of Belleghem J. varies the order of Dunn J. by grafting the “Wagg” vetting process on to the production order made by Dunn J. The respondents contend that Belleghem J. could not vary the order of another Superior Court judge absent a proper motion by the Attorney General seeking to vary that order. Further, the respondents contend that there was nothing before Belleghem J. to establish any of the very limited grounds upon which a variation of an existing order can properly be made.

20I cannot agree with the respondents’ position. The respondents’ motion before Belleghem J. sought the Superior Court’s assistance in securing the Attorney General’s compliance with the previous order made by Dunn J. As the notice of motion indicated, and the respondents acknowledge in their factum, the motion was brought under rule 60.11. That rule provides for the making of contempt orders to enforce court orders that do not involve the payment of money.

21The respondents did not seek a contempt order, but rather asked the court to impose a deadline on the Attorney General for compliance with the order of Dunn J. In seeking that relief, the respondents invoked the broad remedial powers of rule 60.11(5), which provides:

In disposing of a motion under subrule (1) the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms are as just; … [emphasis added]

22Rule 60.11(5) allows a judge hearing a motion under rule 60.11 to make orders short of a finding of contempt. The language of the rule is broad and contemplates any order that is “just”. The order of Belleghem J. maintained the Attorney General’s obligation to produce the material referred to in the order of Dunn J. Belleghem J. concluded, however, that Wagg dictated that the Attorney General have an opportunity to raise objections to production before producing the material. The remedial power in rule 60.11(5) contemplates orders that modify the terms of the initial order to bring that order into compliance with the law. I am satisfied that Belleghem J. had jurisdiction under rule 60.11(5) to make the order that he made. I, of course, intend no comment on the correctness of that order at this stage of these reasons.

(b) Does the YCJA govern access to the records?

(i) The proper analytical approach

23In supporting the order for the production of the documents, the respondents rely on rule 30.10, which controls orders for production of documents by non-parties in civil actions in the Superior Court. The respondents also rely on the Superior Court’s inherent power to control its own process so as to ensure that all documents necessary to the litigation are available to the parties: see Cook v. Ip (1985), 52 O.R. (2d) 289 at 293 (C.A.).

24There are two preliminary problems with the respondents’ reliance on rule 30.10 and the Superior Court’s inherent jurisdiction. First, the production order made by Dunn J. and relied on by the respondents in this court was sought and made pursuant to s. 119 of the YCJA. There was no reference to or reliance on the Rules or the Superior Court’s inherent jurisdiction. Second, I do not understand how rule 30.10 or the court’s inherent jurisdiction could compel the Crown to produce records kept pursuant to s. 114 of the YCJA. That section refers to records kept by a youth justice court. Court records are clearly not in the possession, control or power of the Attorney General. I prefer, however, to bypass these preliminary issues in favour of addressing the substance of the competing arguments.

25Rule 30.10(1) provides for the production of documents by a non-party to the litigation in which the documents are sought where:

• the documents are relevant to a material issue in the litigation; and
• it would be unfair to require the moving party to proceed to trial without production.

26The rule recognizes that production by non-parties is not a routine part of the discovery process. To obtain production from a non-party, the moving party must demonstrate materiality and that, having regard to the totality of the circumstances, fairness dictates that the non-party be compelled to produce the material: see Attorney General of Ontario v. Stavro (1995), 26 O.R. (3d) 39 at 45-47 (C.A.).

27It is not suggested by counsel for the Attorney General that rule 30.10 does not apply to the provincial Crown and specifically to the Attorney General. Nor do I understand counsel to argue that apart from the provisions of the YCJA, there would be any impediment to a rule 30.10 motion to obtain production of material in the possession of the Attorney General relating to a prosecution of a young offender. It is counsel for the Attorney General’s position, however, that with the YCJA, Parliament has created a detailed statutory regime aimed at, among other things, protecting the privacy of young offenders by carefully controlling access to records as defined in the Act. She submits that the scheme as a whole and specific provisions within that scheme make it clear that the procedures for obtaining access to records provided for in the YCJA are the exclusive procedures for obtaining access.

28The analysis in Cook v. Ip, supra, provides a helpful template in assessing the Attorney General’s submission. In that case, a plaintiff sued for injuries suffered in a car accident. The plaintiff authorized the defendant to obtain certain records from the Ontario Health Insurance Plan (“OHIP”) pertaining to the plaintiff’s medical care. OHIP refused to produce the records, claiming that provisions of the Health Insurance Act, R.S.O. 1980, c. 197 precluded production of the records in a civil proceeding.

29Before turning to the relevant legislation, Cory J.A. identified the importance of access to all relevant evidence in litigation both to the litigating parties and to the public (pp. 292-293). He then said:

[I]t is quite clear that the legislature may by statute prohibit OHIP employees from giving testimony producing its records at trial. An example of such a legislative prohibition is the Income Tax Act …. If the legislature is to achieve that result, it must specify the restriction in clear and unambiguous terms [emphasis added].

30Cory J.A. analyzed present and prior provisions of the Ontario Health Insurance Act concluding at p. 295:

The history of the legislation leads me to conclude that s. 44 of the present Act was not intended to be either a complete code or a prohibition against complete production. With the removal of that clear prohibition, it is appropriate to conclude that the court may once again exercise its inherent jurisdiction to ensure that all pertinent documents are before it.

31In this concise analysis, Cory J.A. indicated that production in civil proceedings can be limited or even foreclosed by competent provincial or federal legislation. Legislation will be read as having that effect, however, only where it limits or forecloses the discovery rights of litigants in “clear and unambiguous terms”. If legislation does limit or foreclose discovery in clear and unambiguous terms, the court’s inherent jurisdiction will not operate to circumvent the legislative limits placed on discovery.

32Following the approach described in Cook, the question becomes whether the YCJA declares in “clear and unambiguous terms” that questions of access to records made or kept under the Act, are to be resolved under the provisions of the Act. If Parliament has so declared, then neither rule 30.10 nor the inherent jurisdiction of the Superior Court can provide access to those records in a civil proceeding.

(ii) The provisions of the YCJA

33The YCJA, which came into force on April 1, 2003, is the latest in the long line of federal legislation addressing the pressing and unique concerns that arise when young persons come into conflict with the criminal law. Although at least some of the records in issue existed before April 1, 2003, counsel agree that pursuant to s. 163 of the YCJA, the access provisions of the Act apply to these records.

34The word “record” is defined in the YCJA as including:

[A]ny thing containing information, regardless of its physical form or characteristics, … and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act.

35Part 6 of the Act entitled “Publication, Records and Information” contains detailed provisions referable to both the publication of the identity of those involved in the youth justice system and access to records generated by that process. An overview of Part 6 demonstrates a clear intention to protect the privacy of young persons. In doing so, the Act seeks to avoid the premature labeling of young offenders as outlaws and to thereby facilitate their rehabilitation and their reintegration into the law-abiding community: Re F.(N.) (2000), 2000 SCC 35, 146 C.C.C. (3d) 1 at paras. 14-15 (S.C.C.); YCJA, s. 3(1)(a)(ii), s. 3(1)(b)(i), s. 3(1)(b)(iii).

36Sections 110 to 112 place significant restrictions on the publication of anything that might identify a young offender, a child or young person who is a complainant in a proceeding in Youth Court, or a child or young person who is a witness in such proceeding. These non-publication provisions are not in issue on this appeal. They are, however, indicative of the premium placed on the privacy interests of all young persons involved in young offender proceedings.

37Sections 114 to 116 describe the entities that may keep records pertaining to young offenders. Section 114 provides in part:

A youth justice court … may keep a record of any case that comes before it arising under this Act.

38Youth justice court is defined in s. 13 of the YCJA. Section 13(1) read in combination with s. 38(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 makes the Ontario Court of Justice a youth justice court. Sections 13(2) and (3) of the YCJA provide that a superior court (in Ontario, The Superior Court of Justice) is deemed to be a youth justice court where by virtue of the young person’s election, or deemed election, the trial takes place in the superior court either before a judge and a jury or a judge alone. Sections 13(2) and (3), however, declare that the superior court is a youth justice court only “for the purpose of the proceedings”. The “proceedings” referred to in s. 13(2) and s. 13(3) are those that flow from the election or deemed election of trial by judge alone or trial by judge and jury. The “proceedings” involving the three defendants who were charged as young offenders were completed long ago. A request for access to records by counsel for the L. could not be part of those proceedings. Consequently, even if the proceedings against the three young defendants flowed from their election for trial by judge alone or judge and jury, a most unlikely possibility, the Superior Court of Justice would not be the youth justice court for the purpose of an application for access to documents. In this case, as in the vast majority of cases, the Ontario Court of Justice will be the youth justice court for the purposes of the YCJA.

39Section 115 of the YCJA deals with records that may be kept by the police, including the Royal Canadian Mounted Police. This provision is not in issue on the appeal.

40Section 116(1) refers to records that may be kept by government departments, including the Attorney General. It reads in part:

A department or an agency of any government in Canada may keep records containing information obtained by the department or agency

(a) for the purposes of an investigation of an offence alleged to have been committed by a young person;

(b) for use in proceedings against a young person under this Act;

(c) for the purpose of administering a youth sentence or an order of the youth justice court

41The material sought by the respondents comes within the records described in s. 116(1).

42Sections 117 through 129 of the YCJA address access to records held by the youth justice court, the police, or a government department or agency. Those provisions demonstrate beyond peradventure Parliament’s intention to maintain tight control over access to records pertaining to young offender proceedings whether those records are made and kept by the court, the Crown, or the police. Generally speaking, access to those records is limited to circumstances where the efficient operation of the young offender system, or some other valid public interest is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come into conflict with the law. Different records are also treated differently. Some particularly sensitive records such as medical reports are available only in limited circumstances to specifically identified persons or groups (e.g. see s. 119(6)).

43Even where access is permitted, Parliament seeks to protect young persons’ privacy interests by limiting dissemination of the information in the records even after access is granted. Section 129 reads:

No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.

44Section 118(1) is central to the statutory scheme controlling access to records set up in the YCJA:

Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, 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 [emphasis added].

45Section 118 announces an unequivocal and unqualified prohibition against access to records kept by the court, police, or Crown except as required or authorized under the Act. This prohibition is made all the more emphatic by s. 138 which makes it an offence to violate s. 118.

46Section 119 speaks to the circumstances in which access to records can be obtained. Section 119(1) provides that certain classes of persons, including victims (s. 119(1)(d)), are entitled to access to records kept under s. 114 (youth justice court records) if the request is made within the access period defined in s. 119(2). The duration of the access period depends on a number of variables, but is primarily tied to the disposition in the youth justice court. For example, if the young person was convicted of an indictable offence, the access period normally runs until five years after his sentence is completed (s. 119(2)(h)). The victim’s right to access court records under s. 119(1) is subject to narrow exceptions described in s. 119(4) to s. 119(6). These exceptions preclude access by victims to certain kinds of records (e.g. medical reports pertaining to the young person).

47S.L. is a victim. Counsel for the L. could have gone to the Ontario Court of Justice immediately upon commencing this action in September 2002 and requested access to the court’s records. This procedure does not require a formal motion to the court or notice to any individuals. It involves a simple request to the court office, presumably directed to a court administrator. If the court administrator is satisfied that counsel acts for the victim and that the application is made within the access period, then subject to the narrow exceptions referred to above, the court administrator would be obligated to allow counsel access to the court records. Access includes receiving a copy of the record (s. 122). It is a safe assumption that had counsel followed this course, he would have received documents from the court that would have identified at least some of S.L.’s assailants and may also have provided the information necessary to locate those individuals.

48Section 119(1) also addresses access to records in the possession of the Crown Attorney (s. 116 records). Under s. 119(1), a victim may request access to the Crown Attorney’s records pertaining to the young offender proceedings. Access “may be given” to the victim by the Crown Attorney’s office. Unlike court records where the victim has a right to access under s. 119(1), access to the records held by the Crown Attorney is in the discretion of that office.

49Counsel for the respondents could have requested access to the Crown Attorney’s records. The request is an informal one and does not require notice to other parties. Had such a request been made, I assume the Crown would have given good faith consideration to the request and taken into account S.L.’s status as a victim, the purpose for which the documents were sought, and the nature of the documents in the Crown Attorney’s possession. Documents which raised genuine privacy concerns would no doubt be treated differently from other documents.

50Section 119(1)(s) is a significant feature of the access regime set up in the YCJA. It dictates that access to any record kept under ss. 114 or 116 may be given to:

Any person … that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is …

(ii) desirable in the interest of the proper administration of justice.

51This subsection allows any person, including the victim, to bring a motion before a youth justice court judge for an order allowing access to any of the records made and kept under the Act. A victim could first request access to the records in the court and in the possession of the Crown Attorney. If dissatisfied with the access granted pursuant to those requests, counsel for the victim could bring a motion under s. 119(1)(s) for more complete access. Counsel for the respondents could have followed that procedure.

52Most motions brought under s. 119(1)(s) will be straightforward. If the youth justice court judge determines that access to the requested records is warranted under the Act, he or she will make the order granting access. Where the records are sought in connection with a civil proceeding, the youth justice court judge may conclude that the determination of whether access would be “in the interest of the proper administration of justice” turns entirely on whether the documents are properly producible under rule 30.10. Section 119(1)(s) allows the youth justice court judge to grant access “to the extent directed by the judge”. The section would permit the youth justice court judge to direct that the records be forwarded to the superior court and that access to those records should be granted if the superior court decides that they are producible under rule 30.10. Used in this way, s. 119(1)(s) could effectively mesh the access provisions of the YCJA with the rules governing production of documents by non-parties in civil litigation.

53Section 123 completes the access provisions described in Part 6 of the Act. It allows a youth justice court judge to order access to s. 114 and s. 116 records where the application for access is made after the access period described in s. 119. Unlike an application brought under s. 119(1)(s), an application under s. 123 requires notice to the young offender (s. 123(3)). Access will be granted only if the youth justice court judge is satisfied that the applicant has a “valid and substantial interest in the record” and that access is necessary for the “proper administration of justice” (s. 123(1)).

54The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records. The language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the Act. Using the words of Cory J.A. in Cook, Parliament in “clear and unambiguous terms” has placed the responsibility for determining access to records on the shoulders of the youth justice court judges. This makes sense. Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

55My conclusion that the YCJA provides the exclusive means by which access may be obtained to documents which constitute records under the Act is consistent with the conclusion arrived at in B.G. v. British Columbia, 2002 BCCA 69, [2002] B.C.J. No. 168 at para. 53 (C.A.). In that case, the Attorney General was a party to ongoing civil litigation. The court held that the superior court judge who was case managing the civil litigation could not compel production of records under the Young Offenders Act, the predecessor legislation to the YCJA. The court held that access to records made and kept under the Young Offenders Act could be gained only through the access provisions of that Act which required an application to a youth court judge.

56Counsel for the respondents argue that the interpretation of the Act advanced by the Attorney General creates practical problems, adds procedural hurdles for plaintiffs like the respondents, and increases the costs associated with litigation. Even if I agreed with this submission, it could not alter the intention of Parliament as expressed in the clear language used by it. In any event, I do not agree that the interpretation I favour creates significant practical difficulties. As outlined above, the procedures in the Act allow for access by a victim to records by way of a simple request. The procedures also allow the youth justice court judge to decide questions of access arising out of that Act while still permitting the Superior Court to determine whether a non-party should be compelled to produce documents under rule 30.10. The procedures provided by the Act would have been at least as efficient as those used by the respondents in this case.

57The respondents also contend that they do not have sufficient information to know whether they are within the access periods referred to in s. 119. I do not see this as presenting any practical difficulty to gaining access to the records. Counsel can simply make the request. If he is outside of the access period, he will be so advised by the court or the Crown. The respondents also argued that they could not determine whether the Ontario Court of Justice or the Superior Court of Justice was the youth court justice for the purpose of obtaining the records. I see no merit to this objection. As the proceedings against the three defendants who were charged as young offenders are completed, the Superior Court could not be the youth justice court for the purpose of an access application, even in the highly unlikely event that the three defendants were tried in the Superior Court pursuant to their election or deemed election. The Ontario Court of Justice was the appropriate court to which to make an access application. I would add that even in those unusual cases where there is uncertainty as to which court constitutes the youth justice court for the purpose of the application, I do not see this as a significant impediment. A party seeking access can simply apply to both courts.

(iii) Constitutional considerations

58Belleghem J. concluded, without analysis or reference to the relevant constitutional jurisprudence, that a youth justice court judge lacked “constitutional jurisdiction” to consider a request for production of documents to be used in an ongoing civil proceeding in the Superior Court. Belleghem J. held that only the Superior Court had constitutional authority to make that decision. I take this to mean that a decision regarding the production of documents in an ongoing civil proceeding in the Superior Court formed part of the core jurisdiction of that court which could not be removed without infringing the principles underlying s. 96 of the Constitution Act 1867.

59No constitutional questions were raised by either the respondents or the Attorney General before Belleghem J. He should not have decided the motion on constitutional grounds without full argument. The respondents do not rely on his constitutional conclusions in this court. The Attorney General does challenge those conclusions.

60Given the position of the respondents, I can address this constitutional issue in a summary fashion. It has been authoritatively held that Parliament can create a discrete criminal justice system for young offenders and vest exclusive jurisdiction over that system in a court other than a superior court of general jurisdiction: Reference re Young Offenders Act, s. 2 (P.E.I.) (1991), 62 C.C.C. (3d) 385 (S.C.C.). It follows that a constitutional grant of jurisdiction over access to records created by that system can be vested in the court having overall responsibility for the young offenders criminal justice system. Nor does the grant of exclusive jurisdiction over access to those records offend the constitutional principles underlying s. 96 of the Constitution Act 1867. As Cory J.A. observed in Cook, Parliament and provincial legislatures can validly limit access by civil litigants to documents in the possession of entities that are not parties to that litigation. While such legislation places some restraint on the ability of litigants to obtain relevant information, it serves other equally valid public policy concerns: see Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 at paras. 58-60. These limits do not strike at the core of the superior court’s judicial functions.

61The YCJA provisions giving the youth justice court exclusive jurisdiction over requests for access to records do not constitute an unconstitutional infringement on the jurisdiction of the Superior Court.

(c) Did Belleghem J. err in imposing a “Wagg” vetting order?

62My conclusion that questions of access are for the youth justice court renders this question moot. I add, however, that whether an access order is made under the YCJA or a production order is made under rule 30.10, courts have the power to take steps necessary to ensure that legitimate privacy concerns are protected until those with an interest in maintaining privacy have an opportunity to make submissions relating to access requests.

IV

The Appropriate Order

63I would allow the appeal and set aside the order of Belleghem J. I would dismiss the cross-appeal. I would not restore the order of Dunn J. because, for the reasons set out above, he had no jurisdiction to make that order under the YCJA. It follows that there is no outstanding order touching on access to the records that were subject of the order of Dunn J. The respondents are, of course, free to pursue access claims in accordance with these reasons, if so advised.

64The Attorney General was successful on the appeal, but does not seek costs here or in the court below. The respondents argued that even if the Attorney General was successful on the appeal, they should receive their costs in this court and on the motion. I cannot agree. While the Attorney General can be criticized for aspects of the conduct of this litigation, I do not think that those failings added to the respondents’ legal costs. The respondents chose their litigation strategy. In all likelihood,

65counsel could have obtained many of the youth justice court records by simply making a request of that court for the records. I would make no order as to costs.

Footnotes

1. 1The fourth defendant, Nicholas Braithwaite, had been located and served with the statement of claim before the motion. He is an adult and had been charged as a result of the attack on Sandro.
2. 2This court varied the order made by the Divisional Court but agreed in the main with the screening process proposed by the Divisional Court: see D.P. v. Wagg (2004), 71 O.R. (3d) 229 (C.A.).
3. 3The Attorney General did move for an order in this court sealing the appeal file and converting the title of the proceedings to initials. Although the motion was dismissed, the material filed by the Attorney General refers to the parties by initials.
4. 4The Attorney General in response to the cross-appeal also raised the issue of whether the order of Belleghem J. is final for the purposes of the cross-appeal. However, since the Attorney General concedes that the court could hear the appeal under s. 6(2) of the Courts of Justice Act, even if the order is not final, I do not propose to address that question.