DATE: 2005-05-06

DOCKET: C42762

COURT OF APPEAL FOR ONTARIO

RE: G.L. and T.L. (Appellants) – and – CHILDREN’S AID SOCIETY OF ALGOMA and STEVEN PEARSON (Respondents)

BEFORE: CRONK, GILLESE and MacFARLAND JJ.A.

COUNSEL:

Albert A. Ferranti for the appellant

Jack Squire for the respondent Children’s Aid Society of Algoma

Manjusha Pawagi for the Office of the Children’s Lawyer

HEARD & RELEASED ORALLY: May 4, 2005

On appeal from the Judgment of Justice I. S. McMillan of the Superior Court of Justice dated November 26, 2004, dismissing an appeal from the Judgment of Justice J. Keast of the Ontario Court of Justice dated January 28, 2004.

ENDORSEMENT

[1] On January 28, 2004, Keast J. of the Ontario Court of Justice granted a summary judgment motion brought by the Children’s Aid Society of Algoma (the “Society”), finding the three children of the appellant G.L. (A.P., born […], 1992 (age 13); C.P., born […], 1993 (age 11); and J.L., born […], 1996 (age 9)) in need of protection. G.L. is the biological father of J.L. and the stepfather of A.P. and C.P.

[2] G.L. appealed the summary judgment. By judgment dated November 26, 2004, I. S. McMillan J. of the Superior Court of Justice dismissed his appeal. G.L. now appeals to this court from that dismissal.

[3] In oral argument, counsel for G.L. submitted that the appeal judge wrongly dismissed his appeal, for two reasons. First, the trial judge was precluded by s. 45(4) of the *Young Offenders Act*, R.S.C. 1985, c. Y-1 (the “Act”) from considering G.L.’s 1986 young offender record for the sexual assault of his seven-year old step-sister. Counsel for G.L. submits that s. 45(4) operates as an absolute bar to the admission of the fact of that record into evidence, save as contemplated by s. 45.1 of the Act.

[4] Second, and in the alternative, counsel for G.L. maintains that even if s. 45(4) does not operate as such an absolute bar, the trial judge erred by considering G.L.’s young offender record concerning the 1986 sexual assault in the circumstances of this case.

[5] We would not give effect to these submissions.

[6] On the record here, the introduction of the evidence concerning the 1986 disposition for sexual assault did not emanate from any “record” of that disposition within the meaning of s. 45(4) but, rather, from the Society’s own information concerning its investigation of the 1986 complaint, pursuant to its statutory mandate. Moreover, in this proceeding, G.L. admitted the fact of the 1986 disposition for sexual assault.

[7] We also observe that this is not a subsequent criminal proceeding involving G.L., so as to engage consideration of ss. 40 to 43 and 45(4) of the *Act* in circumstances akin to those that applied in R. v. G.L., 2003 57437 (ON CA), [2003] O.J. No. 1719 (Ont. C.A.). See in particular, R. v. G.L. at paras. 4 to 6. The challenged evidence in this case was considered in child protection proceedings brought under the *Child and Family Services Act*, R.S.O. 1990, c. C.11, which is designed to promote the best interests, protection and well being of children.

[8] Accordingly, for the reasons given, the appeal is dismissed. We do not regard this as an appropriate case for an award of costs of the appeal.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”