Applicant v. Society, 2015 CFSRB 33

CHILD AND FAMILY SERVICES REVIEW BOARD

Applicant

v.

Society

REASONS FOR DECISION: Interim Decision (Hearing)

Date: July 29, 2015

Citation: 2015 CFSRB 33

Related to 2015 CFSRB 27 and 2015 CFSRB 32

Indexed as: Applicant v. Society (CFSA s.36)

1This is a further interim decision in an application for a review of a residential placement. These reasons must be read together with the reasons of the Board on the records and jurisdiction motions that were addressed on June 1, 2015. This decision deals further with the issues of Youth Criminal Justice Act (“YCJA”) records and jurisdiction.

2At the hearing, the Society was represented by new counsel who was not at the Pre-Hearing. She mentioned the question of jurisdiction. The Board advised that it would proceed with the hearing. There was no Youth Court order to permit the Board to properly address the jurisdiction motion by reviewing the bail condition. There was discussion with the parties about a previous case in which temporary placements outside of the child welfare placement did not disrupt the Board’s authority to review the child welfare placement. The Board was, in any event satisfied that the placement at [Facility] was a child welfare placement and thus subject to review. Even if the purported bail condition existed, it was not a condition which gave the provincial director (youth justice) the authority to direct the child’s placement. The Society retained its power to place the child. Since the Society is a party to the Board’s proceedings, it would be obliged to comply with any order of the Board about placement and thus, if the Board ordered a placement change, the Society would be obliged to direct the child to reside in that placement. The society did not pursue the jurisdictional motion. Had they done so, the matter would have had to have been adjourned to get a broader Youth Court order. A broader Youth Court order would have assisted with this exercise from the outset.

3As the hearing progressed, the Board had to caution counsel and witnesses not to deal with YCJA matters but rather, behaviours and actions leading up to but not including any calls to the police, unless the information was contained in one of the reports. The Board was legitimately aware of the charges and some information because of the assessments and the Youth Court Order. The Board was only privy to a placement in a youth justice detention centre because it happened to be in one of the assessments. The Board was obliged to direct counsel that it could not hear the results of the YCJA proceedings or the contents of any bail or probation condition without a more broadly worded order.

4At the end of the first day of hearing, the Board directed the Society to consider whether it needed a broader Youth Court order. In addition to the challenges addressed above, there was a follow up report to one of the assessments in the order. It was unclear whether the existing order applied to the follow up assessments. The Board and the parties discussed broader wording to take to the Youth Court so as not to constrain the process before the Board.

5On the second hearing date, the Society had not obtained a new, broader Youth Court order but had commenced a motion in Youth Court. The motion contained a request for a Wagg like order as well as wording similar to what the Board and parties had discussed. The Board noted that at the pre-hearing it had advised the previous Society counsel that the Wagg approach was not necessary. The hearing proceeded on the understanding that the order would be forthcoming and that any outstanding issues could be addressed on the final day of hearing.

6The Society obtained a new Youth Court order on June 22, 2015. The order contained a provision that the Society could not gain access to the updated assessment until the Board made an order on a Wagg motion with notice to the Attorney General (Civil) and an order that the Board place a warning on its file, as it had in the first order. It contained two broader terms, namely:

4. The Society is permitted to provide to the parties and the Board for the purposes of the Child and Family Services Review Board Application No. RP15-0002 presently before the Board, all information provided to the Society as a parent under the YCJA related to any dealings with [the applicant] under the YJCA.

5. The Attorney General and [ ] Regional Police Service shall provide any information requested by the Society for the purposes of the Child and Family Services Review Board Application No. RP15-0002 presently before the Board for information only. This shall be provided to the Board for the purposes of the Child and Family Services Review Board Application No. RP15-0002 presently before the Board only and will not be in force or effect after the proceeding concludes.

7These terms are fairly specific to this case involving a society as parent. Based on this wording, the Board was able to receive all of the information it needed as the hearing proceeded. The Board did not conduct another Wagg motion for the psychological assessment update as there was no written update. Again, as set out in its decision on the June 1, 2015 motion, the Board has determined that the Wagg order is not the proper route. Parties should avoid drafting requests to the Youth Court that require further vetting by the Board. It is for the Youth Court to exercise its exclusive jurisdiction.

8In future, the Board suggests the following wording for use on motions to Youth Court, to avoid delegation of screening to the Board and to allow for broader access to information. The suggested wording could be used by the societies/applicants in reviews of residential placements or by school boards/appellants in expulsion hearings. Parties will use their judgment depending on the situation. The Youth Court will determine whether this wording is appropriate in any given case or if individual circumstances require specific wording. The parties asked for guidance in this case given the novelty of the issue to the Society. The Board respects that request by providing this suggested language based on an order by a Youth Court in another matter:

THIS motion made by [ ] for an order releasing and granting use of the Youth Criminal Justice Act (“YCJA”) records relating to [youth] (“records”) was heard this day at [ ].

THE COURT ORDERS that:

1. The holder of the records shall release the records to the Applicant for the sole purpose of application [ ] before the Child and Family Services Review Board (“CFSRB application”).

2. The Applicant may share the records with the CFSRB and the parties to the CFSRB application.

3. The parties and the CFSRB may use the records for the sole purpose of the CFSRB application.

4. The parties may call any police officer involved in Youth Court proceedings relating to [ ] as a witness in the CFSRB application.

5. The records and the information in the records shall not be “published” as defined in the YCJA: the records/information shall not be communicated (made known or accessible) to the general public by any means and shall not be discussed, shown or given to anyone who is not a party in the CFSRB application.

9Of course common sense will dictate that if a party is not planning on calling a police officer, that number 4 is not necessary. Further, if a party wanted to call a probation officer that would be specified.

10Once a Youth Court order is made, it permits the Board to manage its process in the usual way. Not all YCJA documents will be automatically admissible or producible before the Board. The Board’s process does not include specific disclosure obligations like in civil or criminal proceedings. Parties generally disclose what they wish to rely on at a hearing pursuant to the Board’s Rule 19. The Board may order disclosure and will hear motions for disclosure and make rulings, depending on the circumstances (Rule 20.1). The Board may also issue directions respecting the use of personal information contained in the documents disclosed (Rule 20.1). Finally, the Board controls what evidence is admissible in its proceedings.

11The parties and their Counsel were respectful and helpful throughout in attempting to get the appropriate information before the Board in this matter.

CONFIDENTIALITY ORDER

12Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate.