WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish 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.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, (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.

COURT OF APPEAL FOR ONTARIO

DATE: 20241018 DOCKET: COA-23-CR-0907

Trotter, Favreau and Gomery JJ.A.

BETWEEN

Canadian Broadcasting Corporation, CTV News, a division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Toronto Star Newspapers Limited, Alison Chiasson and Andrew Brennan Applicants (Appellants)

and

His Majesty the King, Young Person 1, Young Person 2, Young Person 3, Young Person 4, Young Person 5, Young Person 6, Young Person 7, and Young Person 8 Respondents (Respondents)

Counsel: Ryder Gilliland and Michael Robson, for the appellants, Canadian Broadcasting Corporation, CTV News, a division of Bell Media Inc., Global News, a division of Corus Television Limited Partnership, The Globe and Mail Inc., Toronto Star Newspapers Limited, Alison Chiasson, and Andrew Brennan Deborah Krick and Justin Reid, for the respondent, His Majesty the King Mary Birdsell and Candice Suter, for the respondent, Justice for Children and Youth on behalf of Young Persons 1, 2, 4, 5, 6, and 7 Boris Bytensky, for the respondent, Young Person 3 Kevin Gray, for the respondent, Young Person 8

Heard: June 11, 2024

On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated July 26, 2023, dismissing an application for a writ of certiorari from the order of Justice Sheilagh O’Connell of the Ontario Court of Justice, dated January 19, 2023.

Gomery J.A.:

[1] This appeal concerns the interplay of the open court principle and the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended, (the “YCJA” or the “Act”), which limits access to records and information with respect to criminal proceedings against young persons.

[2] The appellants are media companies and journalists. They sought access to records held by the Youth Court relating to proceedings against eight young persons accused of second-degree murder (the “Records”). The Youth Court judge who heard the application (the “YC judge”) held that the appellants had a valid interest in access to the Records but that, under s. 119(1)(s)(ii) of the YCJA, they also had to establish that their access to the Records was “desirable in the interest of the proper administration of justice”. She found that they met this onus with respect to a portion of the Records redacted to ensure that no identifying information about the young persons was disclosed. She found that the proper administration of justice did not support the appellants’ access to the complete unredacted Records. The YC judge also directed that media representatives could apply, on notice, to obtain further disclosure of Records.

[3] The applicants brought a certiorari application before a Superior Court judge (the “SC judge”) to set aside the YC judge’s decision. The application was dismissed. The SC judge also declined to grant the appellants leave to present a companion application challenging the constitutionality of the provisions of the YCJA and related provisions that restrict access to and publication of information in the Records.

[4] On appeal to this court, the appellants invoke the open court principles articulated in the Supreme Court of Canada’s decisions in Dagenais v. Canadian Broadcasting Corporation, R. v. Mentuck, 2001 SCC 76, and Sherman Estate v. Donovan, 2021 SCC 25. Based on these principles, they contend that they are presumptively entitled to full, unredacted access to the Records, without the need to bring an application on notice. Even though the YCJA does not recognize the media as a category of persons enjoying a presumptive right of access, the appellants take the position that it should be read so that special procedural and substantive rules apply to them. They also urge this court to consider their constitutional challenge to the relevant YCJA provisions.

[5] For the reasons that follow, I find these arguments lack merit. I agree with the SC judge that the YC judge correctly identified and applied the test under s. 119(1)(s) of the YCJA. The Dagenais-Mentuck test does not supersede or supplant the valid statutory exception to the open court principle in the YCJA, and there is no unwritten exemption to the YCJA criteria, either procedurally or substantively, for media companies or representatives. With respect to the constitutional application, the SC judge’s decision not to hear the appellants’ Charter challenge was a reasonable exercise of his discretion. As he noted, the Youth Court has unique insight into proceedings under the YCJA and access to the entire record of proceedings, making it appropriate to bring a constitutional challenge before that court.

Relevant Statutory Provisions

[6] Before reviewing the events giving rise to the appeal and the decisions of the courts below, I will canvass the relevant YCJA provisions.

[7] The YCJA establishes the principles and procedures applicable to criminal proceedings against a young person “who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old”. Its preamble recognizes that “members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood” and that “Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons”. The preamble disposes that “information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available”. At the same time, it recognizes that Canada is a party to the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and that “young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms”.

[8] Section 3(1), entitled “Policy for Canada with respect to young persons”, elaborates on the principles animating the YCJA. Subparagraph(1)(b) emphasizes that proceedings involving young persons are unique because youth have diminished moral culpability and a greater opportunity for rehabilitation. As a result, young persons are entitled to special procedural protections, including an enhanced right to privacy:

3 (1) The following principles apply in this Act: (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time…. [Emphasis added.]

[9] Like other criminal proceedings, youth court hearings are open to the public. [1] Persons who attend proceedings are at liberty to disclose the existence of the proceedings and most information about them. This means that, assuming no publication ban has been ordered in a specific case, the media may report on proceedings.

[10] Part 6 of the YCJA, however, presumptively restricts access to records of proceedings against young persons subject to the YCJA. It also prohibits disclosure of the names of such young persons, as well as names of victims and witnesses who are minors, and of information that could identify them. Even where a party is granted access to a record or information, their ability to disclose them is restricted and time limited.

[11] Section 110 of the YCJA provides:

Identity of offender not to be published

110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

[12] Section 111(1) similarly bans the publication of the names and identifying information of witnesses and victims involved in YCJA proceedings who are minors. The persons whose identities are protected under ss. 110 and 111 may themselves choose to disclose their involvement when they are eighteen years old. A youth justice court may also permit publication on application under ss. 110(4) and (6) and s. 111(3).

[13] Records are broadly defined under s. 2 of the YCJA to include “any thing containing information, regardless of its physical form or characteristics … 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”. Under s. 114, this includes a record of a case kept by a youth justice court, review board, or any court dealing with matters arising out of proceedings under the YCJA. Under ss. 115 and 116, the YCJA likewise applies to records kept by the investigating police force; by the RCMP in a central repository; by government departments and agencies; and by private persons and organizations involved in extrajudicial measures or administering youth sentences.

[14] Access to records subject to the YCJA is presumptively prohibited under s. 118(1):

118(1) 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.

[15] Section 119(1) sets out exceptions to this general rule. Persons identified in ss. 119(1)(a) through (r) have a presumptive right to access, subject to certain conditions. These persons include the young person to whom the record relates; their counsel, parents, or an adult assisting them; the victim of the offence or alleged offence to which the record relates; the Attorney General; a peace officer; a judge, court or review officer; and representatives of various government institutions and agencies.

[16] Although a right of access under ss. 119(1)(a) through (r) is presumed, it is qualified. Some persons may only request access for limited purposes. Under subpara. (1)(g)(i), for example, a peace officer may only access a record as defined by s. 116 for law enforcement purposes or for “a purpose related to the administration of the case to which the record relates”, and then only “during the course of proceedings against the young person or the term of the youth sentence”. More generally, s. 119(2) limits the period during which access may be obtained under s. 119(1) from the date a record is made until the disposition of the proceeding or a punishment imposed on a young person is completed. For example, under s. 119(2)(h), if the young person is found guilty of an indictable offence and given a custodial sentence, access under s. 119(1) terminates five years after the sentence is completed. Once the applicable period for a right of presumptive access is over, access to a record can only be obtained through an order by a youth justice court judge under ss. 123, 124 or 126.

[17] Any person or category of person not listed in ss. 119(1)(a) through (r) may seek to obtain access to youth records under subpara. (1)(s), which along with the body of s. 119(1) reads as follows:

119(1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record…. (s) any person or member of a class of persons 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 (i) desirable in the public interest for research or statistical purposes, or (ii) desirable in the interest of the proper administration of justice.

[18] No matter how a person obtains access, s. 129 provides that “no person given access to a record or information under the Act shall disclose that information to any other person unless the disclosure is authorized under the Act.” A person who contravenes s. 110 (the ban on the publication of a young person’s name or identifying information), s. 118 (the ban on access to records and information unless authorized) or s. 129 (the ban on subsequent disclosure) commits a summary conviction offence or an indictable offence carrying a maximum prison sentence of two years.

Background to This Appeal

(1) The appellants’ request for access to the Records

[19] Ken Lee was swarmed and stabbed to death in Toronto on December 18, 2022. The Young Persons, who are respondents in this appeal, are eight teenage girls. They were detained and charged with second degree murder shortly after the stabbing. At the time, they were all between 13 and 16 years of age.

[20] The Young Persons had their first appearance in bail court on December 19, 2022. Media representatives were present at this appearance. Proceedings were adjourned to December 29 so that dates for bail hearings could be set with the Young Persons and their counsel.

[21] In the interim, Young Person 1 and the Crown agreed to move up her next appearance to December 28, 2022. The media was unaware of this and did not attend in court that day. The presiding Youth Court judge heard submissions on bail for Young Person 1 and reserved her decision to the next day.

[22] A publication ban under s. 517 of the Criminal Code, R.S.C., 1985, c. C-46, automatically applied to this hearing and all other bail hearings. The ban prohibits the publication of information and evidence disclosed in the bail hearing, as well as the reasons for granting or denying bail, until the accused is discharged or acquitted, or the prosecution is otherwise resolved.

[23] On December 29, 2022, the Young Persons attended again in Youth Court. Young Person 1 was released on bail with a detailed release plan, with reasons to follow on January 11, 2023. Bail hearings for the other Young Persons were set for late January to early February 2023.

[24] On the day of the December 29 hearing, the appellant Alison Chiasson, a journalist working for the Canadian Broadcasting Corporation (“CBC”), went to the court registry office and asked for a copy of the Records so that she could ascertain which Young Person had been released on bail on December 29, 2022. The registry advised her that, pursuant to a judicial directive, the victim’s name was the only information that it could disclose. Counsel for the appellant CBC then emailed the trial coordinator asking them to forward a letter to the Youth Court judge who presided on December 28 and 29, 2022, requesting access to the Records. The trial coordinator advised CBC counsel that she would have to apply for access on notice to the Crown using the standard application form.

[25] On December 30, the appellants as well as the New York Times Company served and filed an application for access to the Records under s. 119(1)(s)(ii) of the YCJA. This application was supported by an affidavit by Ms. Chiasson. She attached a copy of media reports which mentioned information disclosed by the Toronto Police Services. The information included the young persons’ ages, as well as the bail terms imposed on Young Person 1. In her affidavit, Ms. Chiasson said that she wished to ascertain the age of Young Person 1, the ages of the Young Persons still detained, as well as “other information of potential public interest” in the records. She expressed the view that the media’s lack of access to the Records had “a serious negative impact on [her] ability to report”.

[26] The YC judge heard the appellants’ application on January 13, 2023. The application was opposed by the Crown and by the Young Persons. In cross-examination on her affidavit, Ms. Chiasson testified that she was seeking access to documents such as the list of charges and the list of bail conditions for the purpose of fact-checking to ensure her reporting was accurate. She said that she was not seeking any of the exhibits filed in court which could identify any of the Young Persons, saying “that is not of interest”. She acknowledged that the bail hearings were subject to a s. 517 publication ban.

(2) The YC judge’s reasons and order granting partial access

[27] The YC judge granted the appellants’ application but limited their access to specified Records, which she ordered should be redacted before they were released to the appellants.

[28] The YC judge held that, since the Records fell within the definition of “records” under the YCJA, the appellants’ access to them was presumptively barred unless the court was satisfied that the criteria under s. 119(1)(s) of the YCJA were met. Although she found that the principles discussed in Dagenais, Mentuck, and Sherman Estate were relevant to her analysis, the YC judge rejected the appellants’ argument that the test developed in this caselaw to give effect to the open court principle supplanted the explicit provisions of s. 119(1)(s). She held that the appellants first had to show that they had a valid interest in the Records. Second, in the circumstances of this case, they had to persuade her that access to the unredacted Records was “desirable in the interest of the proper administration of justice”.

[29] On the first element of s. 119(1)(s), the YC judge found that the appellants had a valid interest in the Records, as courts have consistently held that media representatives have a valid interest in youth court records and proceedings: R. v. M.M., 2017 NSPC 12, 141 W.C.B. (2d) 710, at para. 36; R. v. A.Y.D., 2011 ABQB 590, 527 A.R. 242, at para. 30; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, 289 C.C.C. (3d) 549, at para. 7 (Toronto Star Newspaper Ltd. 2012); Re D.C.F.; Re Southam Inc., 74 A.R. 342 (P.C.); R. v. S. (R.D.), 142 N.S.R. (2d) 321 (S.C.).

[30] With respect to whether access to unredacted Records was desirable in the interest of the proper administration of justice, the YC judge considered the competing interests at play. In her view, the “paramount significance” of the open court principle had to be weighed against the harm that would be caused to the Young Persons through inadvertent disclosure of information and the limited interest that the appellants had in parts of the Records at a very early stage of the proceedings. She concluded that the appellants should be granted access to some of the information and documents in the Records, after the documents had been redacted by the Crown to remove any information that would identify the Young Persons. This partial access would, in her view, “protect the heightened privacy interests of the Young Persons at this stage in the court proceedings, while allowing the media the ability to report on the court case to the public.”

[31] Accordingly, the Youth Court granted the appellants access to the following records and information in the Records, subject to redactions:

• The court file number;
• Copies of the criminal informations, including a list of all criminal charges;
• The date of all past and future court appearances for the Young Persons; and
• All bail release orders including bail conditions and terms, and any other order made by the Youth Court in the matter.

[32] The YC judge also directed that the year of birth of each young person must be disclosed, and she identified the accused who had been released on bail in December 2022 as Young Person 1. She did not order the exhibits entered at the bail hearing released, but she reserved the appellants’ right to renew their application following the expiry of the publication ban on bail proceedings under s. 517 of the Criminal Code.

[33] The YC judge directed that, going forward, the appellants should be advised of further hearing dates, and established a process for them to make further applications for Records through the trial coordinator. She ordered that the Records released to the appellants be maintained in conditions of strict confidentiality and that they should not be reproduced, disclosed, or published in any way that contravened the YCJA publication ban.

[34] The YC judge left open the possibility that the appellants could obtain greater access to Records later in the proceedings but held that they would have to bring a further written application to obtain it.

(3) The SC judge’s reasons and order

[35] The appellants filed two Superior Court applications. First, in a certiorari application, they asked the SC judge to set aside the YC judge’s order and to conduct its own review of the Records to determine their access. Second, the appellants brought an application challenging the constitutionality of the YCJA provisions governing access to YCJA records. The SC judge dismissed both applications.

[36] With respect to the certiorari application, the SC judge held that the YC judge had applied the correct test and principles in granting the appellants only partial access to the Records. He confirmed that the only avenue for access to the Records was under s. 119(1)(s) of the YCJA. Like the YC judge, the SC judge rejected the appellants’ argument that the criteria for an order limiting public access to court proceedings affirmed in Dagenais, Mentuck and Sherman Estate are the only relevant considerations. He agreed that the test in this caselaw “plays a guiding role but not one that overwhelms the statutory conditions to the point that they are ignored.” The SC judge accordingly upheld the YC judge’s conclusion that the appellants had to show that they had a valid interest in the Records and that their access to them was desirable in the interests of the proper administration of justice.

[37] The SC judge held that the YC judge committed no error in determining to what extent the appellants should be granted access to the Records. He also rejected the appellants’ contention that they should not have to bring an application to obtain access to records under s. 119(1)(s) given the role of the media in reporting on youth justice. He held that the language of s. 119(1)(s) required that a court determine whether access should be granted and that this did not impose an impractical and unnecessary impediment to access.

[38] Turning to the appellants’ application challenging the constitutionality of s. 119(1)(s) and other provisions of the YCJA, the SC judge found that the Youth Court was the appropriate forum to adjudicate the application. He noted that no constitutional challenge had been raised before the YC judge, even though the Youth Court is empowered to determine the constitutionality of a law before them. He found that a Youth Court judge would be in a better position to consider the issue as it had a complete and comprehensive record of the proceedings and unique insight into youth justice. The SC judge accordingly held that the appellants should bring their application before the Youth Court.

Issues on Appeal

[39] Given the appellants’ submissions on this appeal, the court must answer four questions:

1. Did the SC judge err in upholding the YC judge’s formulation of the test for access to the Records?
2. Did the SC judge err in upholding the YC judge’s determination that the appellants bore the onus to show that access to the Records should be granted?
3. Did the SC judge err in upholding the YC judge’s decision requiring the appellants to bring an application on notice for access to YCJA records?
4. Did the SC judge err in refusing to hear the appellants’ constitutional challenge?

Analysis

(1) The YC judge applied the correct test to determine access to the Records under s. 119(1)(s) of the Act

[40] The first three questions on this appeal require the interpretation of s. 119(1) of the Act. This is a question of law, and the SC judge’s decision must accordingly be reviewed on a correctness standard.

[41] I agree with the SC judge that the YC judge correctly set out the test for access to the Records. The Dagenais-Mentuck test, recently reaffirmed in Sherman Estate, informs but does not displace the criteria set out in s. 119(1)(s) of the YCJA.

(a) The distinction between a limitation to access under common law and a limitation pursuant to valid statutory enactment

[42] The appellants contend that, further to the open court principle affirmed in Dagenais, Mentuck and Sherman Estate, a court has only a limited discretion to make any order to limit the media’s access to court records and ability to report on their contents. The appellants argue that the courts below erred by failing to apply the Dagenais-Mentuck test, rather than the criteria set out at s. 119(1)(s) of the YCJA, to determine whether the appellants should have access to the Records. They contend that the YC judge’s interpretation of the Act “reverse[s] the open court principle”.

[43] The appellants’ argument fails to recognize the distinction between the exercise of a discretionary judicial power in common law and the application of a statutory exception. Rather than reversing the open court principle, the interpretation by the courts below respects an exception to it created through valid legislative enactment.

[44] The open court principle is a cornerstone of democratic society and the common law: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-24; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at p. 187; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at paras. 21-22. Public access to the courts is fundamental to our justice system and our democracy: Sierra Club v. Canada (Minister of Finance), 2002 SCC 41, at para. 36. The open court principle requires not only that members of the public have “real-time transparency” through an ability to attend at hearings, but also access to the court record and the freedom to publicly discuss and engage in debate about court proceedings: Jérémy Boulanger-Bonnelly, “Public Access to Online Hearings” (2022) 45:2 Dal LJ 303, at pp. 307-8.

[45] Media participation is critical to the exercise of the open court principle. Although most court proceedings are open to the public, most people necessarily depend on media reports to understand what matters are being heard and how they are decided. The freedom of press to report on judicial proceedings is protected under s. 2(b) of the Charter: Vancouver Sun, at para. 26, and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at pp. 1339-40.

[46] In Dagenais, the Supreme Court of Canada emphasized the importance of the open court principle and the freedom of the press to report on judicial proceedings. In Mentuck, the Court affirmed the principles set out in Dagenais and, at para. 32, directed that any discretionary judicial order limiting the openness of court proceedings should only be ordered when:

(a) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweighs the deleterious effects on the rights and interests of the parties and the public, including the effects in the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[47] The discretion to limit the open court principle was recently revisited in Sherman Estate. At para. 42, Kasirer J. emphasized that “courts must be ‘cautious’ and ‘alive to the fundamental importance of the open court rule’ even at the earliest stage when they are identifying important public interests.”

[48] The Dagenais-Mentuck test is subject to an important qualification, however. It ensures that the open court principle is respected where a party asks a court to limit access to hearings or court records through the exercise of the court’s inherent discretion to manage its own proceedings. It does not displace or negate the effect of a statutory exception to the open court principle. As held in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22, and reiterated in Sherman Estate at paras. 38 and 40, the test “applies to all discretionary limits on court openness, subject only to valid legislative enactments”. The constitutionality of such an enactment may be challenged. In that case, any limit it imposes on the open court principle must be shown to be a reasonable and justified limitation in a free and democratic society under the Oakes test: Sherman Estate, at para. 40, citing Dagenais, at p. 878, and Vancouver Sun, at para. 30.

[49] In the absence of a successful constitutional challenge, ss. 110, 118 and 119 of the YCJA remain valid legislative amendments. [2] As a result, the courts below were correct in finding that the appellants must meet the criteria set out in s. 119(1)(s) to obtain access to the youth records.

(b) The YC judge correctly interpreted the criteria applicable to an access request under s. 119(1)(s)

[50] The YC judge’s interpretation of s. 119(1)(s) is consistent with the language used by the legislator, the principles underlying the YCJA, and the Supreme Court of Canada’s analysis of a near identical provision in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880.

[51] The YC judge correctly noted that the regime under Part 6 of the Act is the only route to gain access to youth records. In her words, there is “no separate scheme for access to youth records, even when sought for civil litigation or private prosecution of by the media.” Part 6 of the YCJA contains a comprehensive statutory scheme designed to carefully control access to young offender records. As Doherty J.A. determined in S.L. v. N.B., 252 D.L.R. (4th) 508 (Ont. C.A.), at para. 54., “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.”

[52] Section 118(1) provides that “[e]xcept as authorized or required by this Act, no person shall be given access to a record” as defined under the Act. There is no dispute that the Records are subject to s. 118(1). On its face, s. 119(1)(s) requires a party such as the appellants to persuade a Youth Court judge that (1) the person has a valid interest in the record sought; and that (2) access to the record is “desirable in the interests of the proper administration of justice”. It mandates not only a determination of whether access ought to be granted, but on what terms.

[53] The interpretation of s. 119(1)(s) by the YC judge and the SC judge is consistent with the Supreme Court of Canada’s interpretation of an almost identical provision in predecessor legislation, the Young Offenders Act, R.S.C. 1985, c. Y-1 (“YOA”). Parliament enacted the YOA in 1984. Like the YCJA, it prohibited the publication of the name of any young person subject to it as well as information that would identify them, and barred access to records generated in YOA proceedings, subject to exceptions set out in s. 44.1 of the YOA. Section 44.1(1)(k) of the YOA gave access to youth records to:

(k) any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is (i) desirable in the public interest for research or statistical purposes, or (ii) desirable in the interest of the proper administration of justice.

[54] In F.N., a young person objected to a Youth Court’s practice of routinely sending its dockets to local school boards for review by school psychologists. As a result of this practice, the young person’s name, the charges laid against him, and the time and place of his trial were disclosed to two school boards. The Supreme Court of Canada held that the Youth Court’s routine disclosure violated the YOA. The identification of the young person and the disclosure of information of youth court proceedings to the school boards in which the accused was involved was presumptively barred and there was no right of access absent a judicial order under s. 44.1(1)(k) specifying the extent of access granted.

[55] At the outset of his analysis of the governing principles regarding disclosure of youth records at para. 10 of F.N., Binnie J. recognized the importance of the open court principle but observed that it did not have an unlimited application:

It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are a number of important exceptions where the public interest in confidentiality outweighs the public interest in openness.

[56] He noted that youth courts are open to the public, and “their proceedings are properly subject to public scrutiny”; F.N., at para. 12. Under s. 38 of the YOA, the only “sliver of information” that could not be distributed or reported was the name of a young person charged or information that would permit their identification. In an earlier constitutional challenge, s. 38 had been found to infringe the right to freedom of expression under s. 2(b) of the Charter, but was held to be constitutional under s. 1: Re Southam Inc. and The Queen (1984), 48 O.R. (2d) 678 (H.C.), aff’d (1986), 53 O.R. (2d) 663 (C.A.), leave to appeal refused, [1986] 1 S.C.R. xiv.

[57] Binnie J. emphasized that the confidentiality provisions in the YOA were not only designed to protect young persons’ privacy but to enhance their potential rehabilitation and, in so doing, protect society at large. Relying on authorities such as the U.S. Supreme Court in Smith, Judge v. Daily Mail Publishing Co., 443 U.S. 97 (1979), at pp. 107-8 and N. Bala, Young Offenders Law (Concord: Irwin Law, 1997), at p. 215, he held at para. 14 of F.N. that:

Stigmatization or premature “labelling” of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence.

[58] Binnie J. also noted that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the “Beijing Rules”), adopted by General Assembly Resolution A/RES/40/33 of November 29, 1985, were supported by Canada. The Beijing Rules provide that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.”

[59] Having reviewed the principles underlying the YOA’s limits on disclosure, Binnie J. concluded that routine disclosure of youth court dockets to school boards did not meet the criteria under s. 44.1(1)(k). The administrative practice of sending information about young persons involved in YOA proceedings plainly violated the bar on identification in the YOA. Such disclosure was not authorized by a judge and was particularly offensive since it was not limited to school boards responsible for the applicant young person. Furthermore, although school boards had a legitimate interest in knowing whether members of the student body presented a danger to themselves or others, they had “not made a convincing case that their specific interest in the confidential information is related to the administration of justice as opposed to the administration of the schools”: F.N., at para. 35. [3]

[60] The appellants argue that F.N. is distinguishable from this case. First, unlike the school boards in F.N., media representatives do have a valid interest in the records at issue. Second, F.N. arose in the context of an administrative process whereby a Youth Court routinely sent records to third parties without consideration of whether the s. 119(1)(s) criteria were met in each case. The latter argument leads to an inconsistency in the appellants’ position: in asserting that media representatives should be entitled to obtain complete and unredacted youth court records from a courthouse employee without the need for a court order, they are advocating for the same sort of routine, non-judicially supervised disclosure regime rejected in F.N.

[61] In any event, the factual distinctions between this case and those in F.N. do not make that decision any less relevant to the issues on this appeal. Binnie J.’s analysis of the purpose and principles underlying the YOA and its provisions limiting disclosure and publication applies equally to the YCJA and its corresponding provisions. His finding that a party seeking access to YOA records under s. 44.1(1)(k) of the YOA must meet the dual criteria under that provision applies equally to a party seeking access under s. 119(1)(s) of the YCJA.

[62] The YC judge’s interpretation of the applicable criteria under s. 119(1)(s) of the YCJA is consistent with the wording of the YCJA and the reasoning in F.N. She correctly identified that the primary goal of the YCJA “is to limit the stigmatization that attaches to a young person who is being investigated by the police and is being accused of committing a criminal offence or has committed a criminal offence.” As she noted, this goal takes into account the diminished moral blameworthiness and culpability on the part of young persons based on their heightened vulnerability, lesser maturity, and reduced capacity for moral judgment, as required under s. 3 of the Act and recognized in R. v. B.(D.), 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 41.

[63] As well, as noted by the YC judge, “protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society”: R. v. C.(R.), 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 42, and F.N., at para. 14, and the authorities cited therein. This protection is also mandated by Canada’s international obligations pursuant to the UN Convention on the Rights of the Child, which is specifically referenced in the preamble to the Act, and in the Beijing Rules.

[64] Beyond fostering the goals of avoiding stigmatization and therefore enhancing the potential for rehabilitation and society’s long-term interests, the protection of young persons’ privacy accords with our deepest values embodied in rights guaranteed under the Charter. As stated by Cohen J. in Toronto Star Newspaper Ltd. 2012, at para. 41:

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.

[65] This affirmation of the enhanced privacy rights of young persons as a core value was adopted by the Supreme Court of Canada in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 18. As stated again more recently in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 86, the fact that “Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children’s privacy”.

[66] Although the YC judge acknowledged the importance of the public access to court proceedings and the approach to limiting orders in Dagenais, Mentuck and Sherman Estate, she correctly held that the criteria explicitly set out in s. 119(1)(s) prevail. Like other courts who have considered this issue, she concluded that the Dagenais-Mentuck test must be considered through the lens of the YCJA and the principles enshrined in the Act to protect the privacy of youth: R. v. M.M., at paras. 33 and 34; R. v. G.D.S., 2007 NSCA 94, 226 C.C.C. (3d) 196, at para. 38; R. v. A.Y.D., at para. 23. Prohibiting or limiting access to youth records under the YCJA is not an act of judicial discretion described in Dagenais-Mentuck, but an order made based on weighing relevant factors pursuant to the comprehensive statutory regime for access set out under the Act.

[67] For these reasons, I agree with the SC judge that the YC judge correctly interpreted the applicable test under s. 119(1)(s).

(c) The YC judge considered all relevant factors in granting the appellants partial access to the Records

[68] In considering what access should be granted, the YC judge considered all relevant factors. Contrary to the appellants’ submissions on appeal, she gave due weight to the open court principle as a value “of paramount significance in the Canadian democracy.” She noted that media reporting is how the vast majority of Canadians see the judicial process at work. She recognized that the appellants are “established and reputable members of the media who are well aware of the legal prohibition on publishing the names of young persons in this case or any information related to the young persons if it would identify them.”

[69] On the other hand, the YC judge noted that the Young Persons were charged with a very serious offence, of which they were presumed innocent. In these circumstances:

It is vitally important to the young persons in this case, as well as to the broader community, that the young persons’ right to a fair trial is protected.

If found guilty, the young persons will continue to have a privacy interest in their youth court records under the YCJA, however, while they are presumed innocent, their privacy interest is even more heightened.

[70] The YC judge identified two further relevant factors. First, the appellants might inadvertently disclose information if they were given unlimited access to the records:

[I]f the media is granted complete and unredacted access to the entire youth court file at [this] stage of the court process, which includes the names and dates of birth of all of the young persons involved, videos, surety declarations, including names and addresses of sureties and parents, there is a risk of inadvertent or accidental dissemination of any or all of this private information.

If this occurs, then the damage will be irreversible and cause irreparable harm, both to the young persons’ constitutionally protected privacy rights and their rights to a fair trial.

This risk is not speculative, but real, given the speed at which information travels in this digital age.

[71] This concern about inadvertent disclosure is a valid consideration. As the Supreme Court recognized in Sherman Estate, at para. 80, where a court is considering whether to limit access to information that is highly private to an individual, “the seriousness of the risk may be affected by the extent to which information would be disseminated.” Justice Kasirer explained that:

If the applicant raises a risk that the personal information will come to be known by a large segment of the public in the absence of an order, this is a plainly more serious risk than if the result will be that a handful of people become aware of the same information, all else being equal. In the past, the requirement that one be physically present to acquire information in open court or from a court record meant that information was, to some extent, protected because it was “practically obscure” (D. S. Ardia, “Privacy and Court Records: Online Access and the Loss of Practical Obscurity” (2017), 4 U. Ill. L. Rev. 1385, at p. 1396). However, today, courts should be sensitive to the information technology context, which has increased the ease with which information can be communicated and cross‑referenced (see Bailey and Burkell, at pp. 169‑70; Ardia, at pp. 1450‑51). In this context, it may well be difficult for courts to be sure that information will not be broadly disseminated in the absence of an order.

[72] Although these observations were made in the context of discretionary exceptions to the open court principle, they apply equally to the weighing exercise under s. 119(1)(s).

[73] Second, the YC judge noted that the media was limited in what it could publish in any event, given the very early stage of the proceedings:

[A]ll of the evidence in this case to date, including the videos, is subject to the additional section 517 bail publication ban, which prohibits the publication of all evidence or information from the bail hearing until the end of trial. While the media’s interest in accessing the youth court file for these records may increase at a later stage in these proceedings, access to these records now will not be essential to the media’s ability to report upon the court proceedings given this additional publication ban.

[74] This was again a valid consideration, in my view, particularly given Ms. Chiasson’s evidence about the limited purpose of obtaining access to the Records.

[75] In her access order, the YC judge did not give the appellants access to the written designations of counsel that had been filed by some of the accused or to Notices to Parents under s. 26 of the Act. Access to the designations would not have given the appellants any information they did not already have, as counsel had already appeared on the record at the December 29, 2022 hearing. The appellants never indicated that there was any relevant information in the Notices to Parents. The only other category of records to which the appellants were denied access were the exhibits entered at the first bail hearing. Ms. Chiasson affirmed, in cross-examination, those exhibits were “not of interest” to her.

[76] The YC judge’s order was sensitive to the open court principle and the role played by the media in ensuring that the public has insight into court proceedings. She directed that the media would have notice of all future court appearances and set up a streamlined procedure to facilitate any future applications for access to Records. She specifically recognized that the appellants could renew their application for the bail hearing exhibits following the expiry of the s. 517 publication ban.

[77] I agree with the SC judge that the YC judge applied the s. 119(1)(s) test “in a careful and thoughtful manner”, balancing “the rights of the young person’s privacy against the [appellants’] rights to report on the judicial process in the most fulsome way possible.” Her analysis was appropriate to the circumstances of the case, the evidence before her on the application, and the stage of the proceedings. Her order gave the appellants access to the information and Records that they had shown was important to their ability to report at the bail stage while protecting the privacy and procedural rights of young persons charged with a very serious offence.

[78] This ground of appeal should be dismissed.

(2) The YC judge correctly held that the appellants had the onus to show that access should be granted under s. 119(1)(s) of the YCJA

[79] The YC judge rejected the appellants’ submission that the media should have an unfettered right of access to youth court records unless the Crown can demonstrate otherwise. Notwithstanding the Dagenais-Mentuck test, the YC judge concluded that “in the context of youth criminal justice, it is clear that the media is not a class of persons listed as presumptively entitled to access to youth records under the sections 119(1)(a) to (r)” of the Act.

[80] The appellants renew this argument on appeal. They contend that the onus placed on them by the YC to satisfy the s. 119(1)(s) criteria “is illogical and unconstitutional where the media is the party seeking access”, because media access is axiomatically in the interests of the administration of justice. The appellants rely on the open court principle, on Canadian caselaw consistently recognizing that media representatives have a valid interest in records of court proceedings, and on the reference to a “request” in the body of s. 119(1).

[81] I do not find these submissions compelling.

[82] First, for reasons already canvassed above, the Dagenais-Mentuck test and its affirmation in Sherman Estate does not supplant the statutory regime in ss. 118 and 119 of the YCJA. The open court principle is a relevant consideration that should be given weight in determining whether a person should have access under s. 119(1)(s). As correctly found by the YC judge and SC judge, however, it is not the only valid consideration.

[83] Second, as noted at the outset, subparas. (a) through (r) enumerate persons who may request access to records subject to the YCJA. Media representatives are not included in this list. They implicitly conceded as much when they applied for access solely under s. 119(1)(s).

[84] The YCJA was enacted after Dagenais and Mentuck were released and has since been amended. In crafting s. 119(1)(s), the Federal Parliament was aware of the critical role played by the media in ensuring that courts are open to public scrutiny. Despite this, the legislator did not choose to give the media a presumptive right of access to YCJA records. The appellants have not pointed to any caselaw or governing principles that would justify reading in a presumption for access to youth records for media in s. 119(1) that the legislator has failed to enact.

[85] It is not even clear what specific persons or categories of persons the appellants propose should have a presumptive right of access under s. 119(1)(s). In oral argument, the appellants conceded that the term “media representative” is potentially very broad. They then suggested that “accredited media” should enjoy special status under the YCJA. This is an undefined term which could include, among others, foreign media representatives. This could be problematic as compliance with the non-disclosure and non-publication rules in the YCJA by foreign actors would be difficult or impossible to police.

[86] Third, although media representatives have consistently been held to have a valid interest in records of court proceedings, this is not the only criteria for access under s. 119(1)(s). A Youth Court judge must also be satisfied that access to a specific record by a specific person is desirable either “in the public interest for research or statistical purposes” or “in the interest of the proper administration of justice”. Even if they are satisfied, they may consider that access should be limited, as the YC judge did in this case. The determination of access under s. 119(1)(s) is made on a case-by-case basis. In F.N., Binnie J. rejected an interpretation of the “interest of the proper administration of justice” that would allow for a category of access not specifically carved out by Parliament, writing at para. 34 that “control subject to such a broad exception would in effect be no control at all and would render superfluous many of the other restrictions and protections carefully written by Parliament”. This reasoning has the same force now, under the YCJA, as it did under the YOA.

[87] I would accordingly dismiss this ground of appeal.

(3) The YC judge did not err in finding that the appellants were required to make an application on notice for access under s. 119(1)(s)

[88] The YC judge held that, to obtain access to records under s. 119(1)(s), an applicant must make an application on notice to the Crown and the Young Persons. The appellants say that requiring them to make a formal application is inconsistent with the wording of s. 119(s) and that it renders access unnecessarily complicated and impractical. I do not agree.

[89] In my view, the requirement for an application, whether oral or in writing, is plain on the wording of s. 119(1)(s). Section 119(1) states that “the following persons, on request, shall be given access to a record…” This language must, however, be read harmoniously with the text of subpara. (s), which confers a judicial gate-keeping role for the purpose of determining whether access should be granted and on what terms. This mandates a motion or application as opposed to an administrative process. The language of subpara. (s) stands in contrast to the language of subparas. (a) through (r), which does not refer to any determination by a judge as a precedent for access.

[90] In S.L. v. N.B., at para. 51, Doherty J.A. stated that s. 119(1)(s) “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.” He later suggested, however, that a person could first request access to the records in the court and in the possession of the Crown Attorney. The latter comment was obiter. I agree with the YC judge and the SC judge that s. 119(1)(s) is premised on a motion or application on notice.

[91] Courts in Ontario and elsewhere have consistently required that the Crown should be given notice of s. 119(1)(s) applications for access: see R. v. M.M., at para. 29; Toronto Star Newspaper Ltd. 2012, at para. 2; D.C.F., Re, at p. 259. They have also required that notice should be provided to young persons whose privacy rights are at issue in YCJA proceedings: see Toronto Star Newspaper Ltd. 2012, at para. 2; Toronto Community Housing Corporation v. R., 2018 ONCJ 100, at paras. 15-17; and Boyer v. Doe, 2017 ONCJ 272, [2017] O.J. No. 2188, at para. 9. A notice requirement is consistent with the YCJA underlying policy of protecting the privacy of young persons and the recognition that stigmatization of young persons charged with offences may greatly reduce their potential for rehabilitation. As noted by Binnie J. in F.N., the disclosure of information in YCJA records may have a profound and lasting negative impact on a young person. In response to an application, a young person has an opportunity to communicate any circumstances that may make them particularly vulnerable to inadvertent identification, and the Crown has an opportunity to advise the court of any other circumstances that may weigh in favour or against access.

[92] Finally, the appellants complain that requiring them to seek access by way of motion or application is unduly burdensome and may lead to delays in obtaining information in a timely way. This same argument was raised and rejected in S.L. v. N.B., at para. 56:

Counsel 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.

[93] The appellants’ concerns about delay are speculative and not borne out on the facts of this case. They served their application on December 30, 2023; it was heard two weeks later. They obtained an order granting them partial access to the Records less than a month after the Young Persons’ first court appearance. Based on the evidence of Ms. Chiasson, the order gave the appellants access to all information and Records that she needed for fact-checking purposes at the time, given that media had attended all hearings except that on December 28, 2022. Immediate access to further information would not have served any purpose, since media representatives were not entitled to disclose the Young Persons’ names or identifying information under the Act, and a s. 517 ban prevented publication of the evidence at the bail hearings and a court’s reasons for granting or denying bail.

[94] There is no evidence that the application process prevented the appellants from reporting on these proceedings in a meaningful and timely way. The YC judge mitigated against undue delay going forward by ensuring that the appellants were notified of all appearance dates and by allowing them to submit any further applications through the court office.

[95] I am accordingly unpersuaded that the SC judge erred in upholding the YC judge’s direction requiring the appellants to bring an application on notice for this and future s. 119(1)(s) access requests in these proceedings.

(4) The SC judge did not err in declining to hear the appellants’ constitutional challenge

[96] The appellants contend that the SC judge erred in declining to hear their challenge to the constitutionality of the YCJA provisions limiting their right to access the Records and to publish information in them. They do not seek a new hearing but ask this court to declare that the SJ judge erred in dismissing their constitutional application.

[97] I would not grant this aspect of the appeal.

[98] I agree with the respondents that the applicable standard of review is not correctness. The SC judge’s decision not to hear the constitutional challenge was an exercise of judicial discretion. This court must accordingly determine whether he gave sufficient weight to all relevant considerations: Reza v. Canada, [1994] 2 S.C.R. 394, at p. 404.

[99] The considerations considered by the SC judge in declining to hear the constitutional challenge were appropriate. He considered that it is more “desirable that the initial inquiry and decision on these matters be argued, heard and decided in the court that administers youth justice.” This conclusion is consistent with the recognition in S.L. v. N.B., at para. 54, that Parliament has unambiguously placed the responsibility for overseeing access to youth court records on the shoulders of youth justice court judges and that they are uniquely suited to this role:

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.

[100] The SC judge further found that he should not hear the constitutional challenge because he did not have the full record before him. The respondents suggest that he could have simply ordered that the file be transferred. The SC judge was not, however, required to make such an order to accommodate the appellants’ failure to raise the constitutional issues at first instance. The appellants alternatively argue that the SC judge did not need the full record to consider the issues on a constitutional challenge. I do not agree. Charter analysis is contextual. It requires a comprehensive evidentiary record.

[101] The appellants contend that the SC should have given weight to their argument that the constitutional challenge should be heard in the Superior Court because it can declare a law invalid — the relief sought in their application — whereas the Youth Court cannot. As the SC judge correctly found, however, the Youth Court can determine the constitutionality of a provision for the purpose of deciding whether it should be enforced in a specific proceeding: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15.

[102] Even if I had concluded that the SC judge erred in refusing to hear the appellants’ constitutional challenge, I would deny them the declaratory relief they seek on procedural grounds. Their standalone application did not name the Attorney General of Canada as a respondent on the application, as required given the relief sought. The appellants instead simply named the respondents to their original application. I also note that, in their notice of appeal, the sole basis that the appellants cite for this court’s jurisdiction is s. 784 of the Criminal Code. Section 784 provides for an appeal as of right from a judgment “granting or refusing the relief sought in proceedings by way of mandamus, certiorari or prohibition”. It does not provide a right of appeal from the SC judge’s decision denying the appellants declaratory relief.

Disposition

[103] I would dismiss the appeal.

Released: October 18, 2024 “G.T.T.” “S. Gomery J.A.” “I agree. Gary Trotter J.A.” “I agree. L. Favreau J.A.”

[1] Exceptionally, pursuant to s. 132 of the Act, a judge or court presiding at a YCJA proceeding may exclude a person from attending all or part of a hearing if they consider the person’s presence is unnecessary and, in the judge or court’s opinion, (1) evidence or information presented would be seriously injurious or prejudicial to the young person or a minor witness or victim, or (2) if the exclusion of the person or the public in general is in the interests of public morals, the maintenance of order, or the proper administration of justice.

[2] As already mentioned, the appellants sought to challenge their constitutionality in their second application before the SC judge. For reasons I will set out later, I find no error in his determination that the appellants should bring their constitutional challenge before the Youth Court.

[3] Binnie J. also considered, and rejected, other bases on which disclosure might arguably be made to school boards. I will not review his reasoning on these alternative arguments as they are irrelevant to the issues on this appeal.