WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published. — (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.

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

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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 Information

Ontario Court of Justice 311 Jarvis Street Toronto, Ontario M5B 2C4

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

AND IN THE MATTER OF an Application under section 119 and 123 of the Youth Criminal Justice Act for access to records of A.C.

DATE: 2016-12-20

Parties

BETWEEN:

CHILDREN'S AID SOCIETY OF TORONTO

— AND —

A. C.

— AND —

HER MAJESTY THE QUEEN

Before: Justice M. L. Cohen

Ruling released on: December 20, 2016

Counsel:

• No one appearing for the Crown
• Michelle Cheung, counsel for the Children's Aid Society of Toronto
• Renatta Austin, Counsel for A.C.

COHEN, M. L., J.:

Introduction

[1] This is my ruling on an application by the Children's Aid Society of Toronto for access to police records created and kept under the Youth Criminal Justice Act in relation to A.C., who is now an adult. The society seeks access for purposes of a child protection proceeding regarding A.C.'s child, J.C-W. A.C. opposes the application.

[2] Records created in the course of police investigations and prosecutions of young people are strictly controlled under the Youth Criminal Justice Act in order to protect the privacy of the young persons involved. An application for access to such records requires the court to balance "some valid public interest with the benefits of maintaining the privacy of young persons who have come in conflict with the law": S.L. v. N.B., [2005] O.J. No. 1411 (Ont. C.A.), par. 42.

[3] In this case the society argues that the "valid public interest" lies in supporting the society's ability to carry out its duties under the Child and Family Services Act. Accordingly I begin with a brief account of A.C.'s own history with the society, and of the child protection proceeding regarding her son.

A.C.'s History with the Society

[4] A.C. was the subject of child protection proceedings when she was a child. At the age of thirteen, she came into the care of the society. Based on its experience with A.C. as a foster child, the society believes her son would be at risk of physical and emotional harm if placed in her care, or, alternatively, if she were to exercise unsupervised access to him.

[5] The following account of A.C.'s child protection history is taken from the society's pleadings in the child protection case regarding J.C-W, and the society's affidavit filed on this application.

[6] According to the pleadings, the society's involvement with A.C. began in January, 2010, as a result of difficulties her mother was experiencing managing A.C. and her two sisters. At that time A.C.'s mother reported that A.C., then age 13, was "engaging in high risk behaviours, including smoking marijuana, drinking alcohol and engaging in sexual activity". A.C.'s mother told the society that when she attempted to enforce rules, A.C. would become verbally abusive towards her.

[7] On May 12, 2010, A.C., then age 14, was placed in foster care pursuant to a Temporary Care Agreement entered into between the society and her mother. At that time "…the main concerns involved [A.C.'s] anger, outbursts and inability to limit her reaction when in conflict, as well as her incurring multiple Youth Criminal Justice Act charges for assault."

[8] On May 26, 2011, the society commenced a protection application, and on November 17, 2011, A.C. was found to be a child in need of protection under section 37 (2) (i) of the Child and Family Services Act. On June 11, 2013, A.C. was made a Crown Ward, and placed in the permanent care of the society.

[9] While in foster care, A.C. was moved many times as a result of what was described as her unmanageable and threatening behaviour. According to the society, A.C. made poor peer choices, used a variety of illicit/illegal drugs, accumulated further charges, ran away from her group homes frequently, and had multiple police contacts.

[10] In February, 2015, A.C. was assessed by a psychologist who concluded that she was developmentally delayed (1st percentile), had difficulty regulating her emotions and impulses, and placed a "premium on using physical aggression or intimidation as a way of achieving her goals." The report stated that A.C. "…can be very angry and volatile…"

[11] The society maintains that many of these issues continues to exist today.

Protection Application Regarding J.C-W

[12] At the age of 19, A.C. became pregnant. She refused the opportunity for extended care, and rejected offers of assistance from the society with her pregnancy. The society decided to apprehend the child at birth.

[13] J.C-W. was born earlier than his due date, and, due to an administrative error, the hospital did not inform the society of his birth. The mother and the paternal grandmother cared for J.C-W. until November 30, 2015, when he was apprehended and placed in temporary foster care.

[14] On December 4, 2015, the society commenced a protection application regarding J.C-W. In the application the society sought a finding that the child is in need of protection under sub-sections 37 (2) (a) and (b) of the Child and Family Services Act, and an order of society wardship for six months, with access to the mother at the discretion of the society.

[15] On March 23, 2016, an order was made placing J.C-W. in the temporary care and custody of his paternal grandmother, subject to society supervision. While A.C. was granted access to her son, the order requires that the access be supervised by the father or the paternal grandmother.

[16] On April 5, 2016, the society filed an amended protection application, seeking a finding under section 37 (2)(b), and a final order placing J.C.W. in the care of the paternal grandmother, subject to society supervision, for 6 months. The society asks for a final order that A.C.'s access be supervised, and at the discretion of the Society. The application remains before the court.

[17] A.C. opposes the protection application. She disputes that the child was at risk at the time of apprehension. If the child is found in need of protection, she asks for an order placing J.C-W. with the paternal grandmother under a supervision order. In the alternative, she asks for an order placing J.C-W. with her under a supervision order. If the child is placed with the paternal grandmother, A.C. seeks unsupervised access. She plans to reside with the paternal grandmother and to support her in caring for J.C-W.

[18] The father has filed an Answer seeking placement with him, or with him and the paternal grandmother, subject to society supervision.

[19] The paternal grandmother was made a party on January 5, 2016, and she has filed an Answer seeking an order placing the child with her subject to society supervision.

The Records Application – Position of the Parties

[20] In its application, the society states that:

"Information in [A.C.]'s youth records combined with the above-noted information related to concerning incidents involving [A.C.] since she turned 18, constitute a continuous pattern of concerning behaviour on the part of [A.C.] which would place her child at risk of physical and emotional harm if he was exposed to it.

The details contained within [A.C.]'s youth records are relevant to the child protection court's determination of the following issues, which will be raised in the child protection proceedings as they pertain to A.C.'s request to resume a caregiving role to her young infant child, or to be permitted unsupervised access to him:

How long-standing a problem is [A.C.]'s inability to control her anger and/or regulate her emotions?

Does [A.C.] have a pattern of being able to follow court imposed conditions such as bail and/or probationary orders?

What services have been offered to [A.C.] through the criminal justice system and has [A.C.] shown an ability to collaborate and work effectively with these service providers?"

[21] Thus the society argues that the records are necessary to assist it in assessing the risk of physical and emotional harm to the child were he to be placed in A.C.'s care, or if she has unsupervised access to the child. Although the society has much of the information in its own records, counsel argues that the police records are the best evidence of the mother's history of involvement in the youth criminal justice system.

[22] In addition, counsel argues that, at this time, the society requires access to the police records for purposes of an assessment under section 54 of the Child and Family Services Act. The society wishes to provide the assessor with the entire police record.

[23] In addressing the privacy issues, the society argues that relative to other civil litigation, child protection litigation itself contains many privacy safeguards, for example, the hearings are private (section 45), publication of information identifying a child or parent is prohibited (section 45(3)), distribution of court transcripts is limited (45(10)), the court can prohibit publication of identifying information (45 (9)), and penalties are provided for breaches of these provisions (s. 85 (3)).

[24] A.C. opposes the application. She argues that the society has no valid interest in the records since she is now an adult, and records created when she was a youth are not relevant to the protection application. Further, she argues that the society has been dealing with her since 2010, and has abundant evidence, from its own observations, relevant to the issues it raises. She submits that, insofar as the protection proceedings are concerned, the prejudice created by the records would outweigh their probative effect, and therefore access would not be desirable, or necessary, in the interest of the administration of justice.

[25] Finally, A.C. argues that access to the records would significantly breach her privacy rights under the YCJA, and that the order requested is not in keeping with the spirit of the YCJA in that it undermines the presumption of diminished responsibility of young persons which is central to the Act.

Access to Records under Part Six of the Youth Criminal Justice Act

[26] Part 6 of the YCJA protects the privacy of young persons dealt with under the Act. Under Part 6, publication of information that would identify a young person as having been dealt with under the Act, and access to records created or kept for the purposes of the Act, are strictly limited.

[27] Sections 114 to 116 of the Act permit courts, police forces and government agencies to keep YCJA records. Under the YCJA a record

…includes anything containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, 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. (dossier)

[28] Police forces are permitted to create and keep records under section 115 of the Act. Access to Section 115 records is affected by Section 118 which provides that,

…except as authorized or required by the Act, no person shall be given access to such records (and the information contained in the record), where to do so would identify the young person to whom the record relates as having been dealt with under the Act.

[29] Thus the society will be denied access to A.C.'s police record unless access is authorized or required by the Act.

[30] Sections 119 to 123 of the Act set out rules governing access to YCJA records, including police records. Section 119(1) sets out specific categories of persons who may apply for access to records, and sub-section 119 (2) provides for time periods ("access periods"), during which those persons may be entitled to, or authorized, to have access to records. The access periods are generally a function of the outcome of the prosecution, the nature of the crown election, and the gravity of the offence.

[31] Once an access period has expired, sub-section 128(1) provides that

Subject to sections 123…no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act…

[32] Section 128 provides that after the access periods have expired, youth records will be inaccessible, subject to certain exceptions. Section 123, is one such exception. Section 123 provides for access by any person whose application is made after the relevant access period has expired.

[33] Whether an application for access is governed by section 119, or by section 123, will depend on whether the records fall within or outside the access periods. The test to be applied by the court under each section is different. A more stringent test must be satisfied under section 123. As a result, determining which section applies is the essential first step in an application.

[34] On a records application under either section 119 or section 123, it is important to bear in mind why access periods exist. Youth records are not treated the same way as adult criminal records, which, generally speaking, and subject to limitations, remain accessible in perpetuity. Section 128 is one of several sections that expresses this difference.

[35] The fact that access periods are defined under section 119, and that records are more difficult to access under section 123, is consistent with the presumption of diminished moral blameworthiness for young persons, upon which the criminal justice system for young persons is based. It is also consistent with the emphasis on rehabilitation and reintegration which is a central principle of the Act. The relative inaccessibility of YCJA records protects young people from the long-term negative consequences of their youthful offending behaviour, and is in keeping with the rehabilitative intentions of the Act.

The Records

[36] I have reviewed the police records produced to the court by the Toronto Police Service under subpoena, and have advised counsel of the substance of the records for purposes of their argument.

[37] Among the police records are records in which A.C. was identified as a victim of an alleged crime, copies of occurrences which did not result in charges, and "field reports" in which AC was named. The society advised it was not seeking access to these records. The remaining records, to which the society is seeking access, involve charges that were withdrawn, stayed, or resulted in dispositions. The bulk of these records fall outside the access periods set out in section 119(2). Access to those records will be decided under section 123 of the Act. However, records in relation to two offences are still within the access periods, and will be decided under section 119(1) (s).

[38] The following table sets out in chronological fashion the records to which the society seeks access. Since the disposition date governs the commencement of the access period, I list the records below by disposition date:

Offence	Offence Date	Disposition Date	Disposition	Access Period	Access Period Ends
Robbery	April 30 2012	June 27 2013	4 months PTD*/12 months probation	119 (2)(h)	June 27 2019
Fail to comply recog	June 1 2012	June 27 2013	withdrawn	119 (2)(b)/ 2 months	September 27 2013
Fail to comply undertaking	June 1 2012	June 27 2013	withdrawn	119 (2)(b)	September 27 2013
Fail to comply recog	February 12 2012	June 27 2013	12 mos. Probation (indictable)	119 (2)(h)	June 27 2019
Obstruct police	February 18 2012	June 27 2013	withdrawn	119 (2)(b)	August 27 2013
Fail to Appear	February 15 2012	June 27 2013	withdrawn	119 (2)(b)	August 27 2013
Fail to comply recog.	October 14, 2011	July 19 2012	stayed	119 (2)(d)	July 19, 2013
Fail to comply recog	October 7 2011	July 4 2012	stayed	119 (2)(d)	July 4 2013
Fail to comply recog	August 19 2011	July 19 2012	stayed	119 (2)(d)	July 19 2013
Disobey Court Order	August 19 2011	July 19 2012	stayed	119 (2) (d)	July 19 2013
Fail to appear	June 18 2012	July 20 2012	stayed	119 (2)(d)	July 20 2013
Fail to comply recog	December 16 2011	July 20 2012	stayed	119 (2)(d)	July 20, 2013
Threatening	October 30 2011	July 12, 2012	stayed	119 (2)(d)	July 20, 2013
Fail to comply recog	July 15 2011	July 20 2012	stayed	119 (2)(d)	July 20 2013
Fail to Appear	unknown	October 2 2012	Conditional discharge	119 (2)(f)	October 2 2015
Fail to comply undertaking	April 9 2011	August 4 2011	withdrawn	119 (2)(c)	October 4 2011
Cause disturbance	December 28, 2010	August 29 2011	Withdrawn/ Extrajudicial sanction	119 (2)(c) or 119 (2)(a)	October 29 2011/EJS date unknown
Assault	December 28 2010	August 29 2011	Withdrawn/ Extrajudicial sanction	119 (2)(c) or119 (2)(a)	October 29 2011/EJS date unknown
Assault with intent to resist arrest	December 28 2010	August 29 2011	Withdrawn/ Extrajudicial Sanction	119 (2)(c) or 119 (2)(a)	October 29 2011/EJS date unknown
Assault	September 5, 2010	February 11 2011	withdrawn	119 (2)(c)	April 11 2011

*Pre-trial detention

[39] The above access period calculations are based on the premise that A.C. was not convicted of an additional offence as an adult during the access period (section 115 (6)). There was no evidence the applicant has been charged or convicted of any offence as an adult.

[40] As is apparent from the table, the only records which remain within the access periods are the robbery charge from April 30, 2012, and the charge of failing to comply with recognizance from February 12, 2012, upon which the Crown proceeded by indictment. The access period in relation to these records expires June 27, 2019. As a result, access to these records will be decided under section 119. Access to the remaining records, which fall outside the access period, will be governed by section 123.

Section 119 Records

[41] Section 119 (1) sets out the categories of persons who may be entitled to, or may be authorized, to have access during the access periods. Section 119 (1) (n) provides that children's aid societies may be permitted access to police records which fall within the access periods. The section provides that, on request, a person may be given access to a police record during the specified access period if that person is

(n) a member of a department or agency of a government in Canada, or of an organization that is an agent of, or under contract with, the department or agency, who is

(ii) engaged in the supervision or care of the young person, whether as a young person or an adult, or in an investigation related to the young person under an Act of the legislature of a province respecting child welfare,

[42] Although the question was not argued before me, I have considered whether this section applies to the application in this case.

[43] On its face, subsection119(1)(n) appears designed to facilitate access to YCJA records by child protection agencies involved in the supervision or care of young persons, or former young persons. Child welfare agencies have an interest in the records for such purposes. A.C. is no longer in the care of the society, nor is she subject to society supervision as a result of a child protection order. Because her son is the subject of child protection proceedings, absent a crown wardship order, or the termination of the proceedings, A.C.'s parenting will likely be subject to some form of society supervision. In my view supervision of her as a parent is not the kind of "supervision" contemplated by this sub-section.

[44] In any event, and if I am wrong in my interpretation, the society's ability to access the records does not change. Because all access to YCJA police records is discretionary, rather than mandatory, even if the applicant may have a right to request access to police records under s.119 (1) (n), the police have a right to decline production. Justice Doherty described this process in S.L. v. N.B., [2005] O.J. No. 1411(Ont. C.A.), in relation to a request for access to YCJA records by a victim of an offence. From the perspective of section 119(1), a victim is in the same position in relation to access to police records as the society applying under section 119(1)(n). Justice Doherty said that

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. (par. 51)

[45] As the records keeper, the Toronto Police Service ("TPS") was served with the Society's application for access to the records. The TPS did not appear on the application, but a letter from counsel for the TPS accompanied the subpoenaed documents. The letter states, inter alia, that

With respect to the application, the TPS takes no position as to the likely relevance of the enclosed YCJA records and defers to the Court on this matter.

As a result, the society's application for access to records which are within the section 119 access period will be determined under section 119(1) (s) of the Act.

[46] An order under section 119 (1) (s) also better serves the society's purposes. As Blacklock, J. noted in R. v. S.F. (, 2007 ONCJ 577 (Ont. CJ)),

… the fact that these parties have a statutory right to access these documents does not mean by virtue of that right that they are entitled to reveal the document's content to others in the context of civil litigation or otherwise. When a party is seeking access to documents for a purpose which will of necessity expose the document or its contents to a broader audience, it is appropriate in my view, for the court to consider the matter under section 119(s). This is because what is being sought in that situation is not just that the victim have access personally. In reality access is being sought for the victim and a class of other persons. In this case the additional class of persons would be those who may of necessity have access to the documents in issue during the course of the civil litigation. (par. 25)

[47] All of the foregoing leads me to the conclusion that the application for the police records within the access periods will be governed by section 119(1)(s).

Records Within the Access Period

[48] As I have indicated, there are two records within the access period. The first is a record in relation to a charge of robbery while armed with a firearm, with an offence date of April 30, 2012. It is important to note with respect to this charge, that A.C. pled guilty to the lesser offence of robbery. The robbery involved a home invasion by several armed males. There is no allegation that the applicant possessed or used a weapon during this robbery.

[49] The second record within the access period is related to a charge of failing to comply with recognizance, with an offence date of February 12 to 18, 2012, upon which the crown proceeded by indictment. The breach of recognizance was a failure to reside at the address specified in the recognizance.

[50] On June 27, 2013, A.C. was sentenced on both charges to a period of probation of 12 months, taking into account four months A.C. spent in pre-trial detention. The youth sentence was completed at the end of the 12 month probation period, June 27, 2014. She was not found guilty of an offence after these dispositions. The access period expires June 27, 2019.

Section 119(1)(s)

[51] Section 119 (1) (s) provides that

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 kept under section 114, and may be given access to a record kept under sections 115 and 116:

(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

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

[52] To succeed in its application under section 119 (1) (s), the society must establish that it has a "valid interest" in the record, to the extent directed by the court, and that access to the record is "desirable in the interest of the proper administration of justice".

[53] A "valid interest" in a record is an interest in the record which is legitimate and relevant to the purpose for which the record is sought. In this case access is sought for purposes of a child protection proceeding. The society is seeking to establish that its intervention is necessary to protect the health and well-being of a child. Evidence that the applicant was found guilty on a charge of robbery, an offence of violence which, in this case involved a home invasion and the presence of guns, is prima facie relevant to the issue of risk to the child.

[54] The society also seeks access to the breach of recognizance charge from 2012. The society argues that access to this record is relevant to the question of A.C.'s ability to comply with court orders which will be an issue in the proceeding. This possibility is also sufficient to find the society has a valid interest in the proceedings. As Binnie, J. pointed out in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880 (S.C.C.),

A "valid interest" has been held to include institution of civil proceedings: Re Smith and Clerk of Youth Court, (1986) 2858 (ON SC), 31 C.C.C. (3d) 27 (Ont. U.F. Ct.) (par 34)

[55] My finding that the society has a valid interest in the record does not, however, dispose of the application. The society must also satisfy the court that access to the record is desirable in the interest of the proper administration of justice. This test is a limiting factor.

[56] The requirement that access be desirable in the interest of the proper administration of justice brings us to the balancing of interests required under Part 6 of the Act. In L. (S.) v. B. (N.), [2005] O.J. No. 1411 (Ont. C.A.), Doherty, J. said

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 (my emphasis)

[57] In applications for access to YCJA records, the public policy concern in the legislation is the "premium placed on the privacy interests of all young persons" involved in proceedings under the YCJA (L. (S.) v. B. (N.), par. 36). Thus the society's interest in the child protection litigation must be balanced with A.C.'s privacy interests within the youth justice system.

[58] A.C. is an adult and a mother. The records were created when she herself was a vulnerable youth. A.C.'s child is also vulnerable and requires protection. A court will need to assess A.C.'s capacities in order to determine whether she can be entrusted with the care of her child. The records may assist in that exercise. I leave it to the child protection court to determine the weight to be given to the evidence of this offence, considering A.C.'s relatively minor role, the date of the offence (four years ago), and the applicant's age at the time (sixteen).

[59] The threshold for access to records during the access period is low, relative to the threshold which applies once the access period has expired. Access must simply be "desirable" in the interest of the proper administration of justice. In considering this issue, I have taken into account the fact that the child protection proceedings are subject to the many privacy protections I have described earlier, which limit publicity and publication in child protection proceedings.

[60] The YCJA records may not reflect the person A.C. is today, as she maintains, but her privacy interests must yield to the imperatives of the child protection case. To quote Smith, J. in R.G. (Re), [1999] B.C.J. No. 1106 (B.C. Prov. Ct.),

As important as privacy is for youth records under the YOA, there is an overriding importance, in certain circumstances, of allowing disclosure in order to protect other children.

[61] I find that the society has met the test in section 119(1)(s) and access will be granted to the two records within the access period.

Section 123 Records

[62] I turn then to the remaining records, all of which fall outside the access period. Section 123 applies where access is sought to these records.

[63] Section 123 provides a more stringent test than section 119(1)(s):

A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person,

(a) if the youth justice court judge is satisfied that

(i) the person has a valid and substantial interest in the record or part,

(ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice, and

(iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province…

[64] Under section 123, the applicant's interest must be "valid and substantial", rather than merely valid, and the court must be satisfied that access is "necessary", rather than simply "desirable," in the interest of the proper administration of justice. As Katarynych, J. stated in J.D. (Re), 2009 ONCJ 505, [2009] O.J. No. 6384,

I cannot use the principles of s. 119 to inform application of the criteria required by s. 123 of the Act to this adjudication. The fact that a victim might have had an access to information under s. 119 of the Act, had the victim reached for that access within the statutory access period, does not mean that the access is available after the expiry of the access period.

The test prescribed by the Act is a stringent test. Access to a record that is "desirable" in the interest of the proper administration of justice is not synonym for access that is "necessary". Section 123 rests nothing in "desirability". Access to a record because the interest in it is shown to be valid is not enough under s. 123 of the Act. An interest in a record that is "valid" may or may not rise to the level of an interest that is both "valid" and "substantial. Moreover, the task in an application under s. 123 is to show that it is "necessary" for access to be given to the record or part of it in the interest of the proper administration of justice. See YCJA s. 123 (1) (a).(emphasis in the original)

[65] The distinction between the tests for the two sections exists for a number of reasons: Firstly, as we have seen, the effect of the end of access periods means that

… no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. (s.128(1))

[66] Secondly, the end of the access periods also means, generally, that the records will be destroyed or archived under section 128.

[67] While section 128 is subject to section 123, the end of the access period nonetheless entails that records will be more difficult to access under section 123. Making access to the records more difficult is consistent with the rehabilitative objectives of the Act, which require that youth be protected from premature labelling as "outlaws"

…thereby facilitat[ing] 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). (S.L. v. N.B., par.35)

[68] The overall scheme of Part 6 is intended to protect youth from the collateral harms of the justice system created by criminal records. Youth should not be followed by a record acquired during their adolescent years. Indeed the variations in access periods are themselves an indicator of relevance. The access periods vary with the gravity of the offence. The shorter the access period, the less likely it will have relevance to the proper administration of justice in a future proceeding.

[69] Bearing this interpretation in mind, I turn to the section 123 records in this case.

[70] These records are comprised of 18 dispositions respecting offences alleged to have occurred between 2010 and 2012. A.C. was born in 1996, so the records span a period when she was between 14 and 16 years of age. Of the records, nine relate to charges that were withdrawn, and eight to charges that were stayed. Three of the withdrawals were associated with extrajudicial sanctions, presumably, but not necessarily, completed prior to the withdrawal. Only one record arises from an actual adjudication: a disposition of a conditional discharge on a fail to appear charge with an offence date of October 2, 2012.

[71] What can we conclude about the records relating to the 17 charges that resulted in a stay or withdrawal? In my view, very little of relevance to the child protection proceedings. Withdrawals and stays involve an exercise of crown discretion not to proceed with a charge. No reason need be given. Where a charge is withdrawn, a youth is entitled to the presumption of innocence. Insofar as a stay is concerned, Section 579(2) of the Criminal Code provides that where the proceedings are not recommenced within one year of the date of entry, "the proceedings shall be deemed never to have been commenced." None of the proceedings in respect of these charges were recommenced. Again, A.C. retains the presumption of innocence.

[72] Extrajudicial sanctions were imposed in three of the seventeen withdrawn or stayed matters. It appears that these extrajudicial sanctions were imposed in 2011 in relations to alleged offences from 2010, when A.C. was fourteen. Extrajudicial sanctions do involve an acceptance by a young person of "the act or the omission that forms the basis of the offence". However in my view they are of little relevance to the child protection proceedings.

[73] First of all, the sanctions are extrajudicial. This means that the allegations which led to the sanctions have never been subject to judicial scrutiny. The facts underlying the offence, for which the young person took responsibility, cannot be ascertained with any measure of certainty. Secondly, the access periods for the records of the extrajudicial sanctions in this case have expired. In the sentencing context, no reference to these sanctions is permitted in a pre-sentence report. This means that the imposition of an extrajudicial sanction is not considered relevant in a sentencing context after the access period has expired. Thirdly, and most conclusively, section 10(4) of the Act provides that

Any admission, confession or statement accepting responsibility for a given act or omission that is made by a young person as a condition of being dealt with by extrajudicial measures is inadmissible in evidence against any young person in civil or criminal proceedings.

[74] The last record to canvass in this application is the record of the fail to appear charge that resulted in a conditional discharge. This is the only offence of failing to appear and, considering the penalty imposed, was minor.

[75] In considering the number of charges A.C. accumulated, it is important to bear in mind that A.C., who resided in group homes for most of her adolescence, was more likely to come to police attention and arrest, than a young person who ran from her parent's home. The sheer number of the charges does not thereby make them more relevant.

[76] Considering all of the foregoing, it is my view that the society's application under section 123 must fail on the issue of "valid and substantial interest", alone. The society cannot have a valid and substantial interest in a record that has little or no probative value.

[77] If I am wrong in this conclusion, I find that access to the record is not necessary in the interest of the proper administration of justice.

[78] Firstly, A.C. was in the care of the society throughout the years these records were accumulated, and its own records will provide direct evidence of A.C.'s interactions with the police. The police records almost entirely consist of hearsay and opinion and are not reliable. Furthermore, they do not assist in answering the questions formulated by the society in its application. Finally, in my view, a record of arrests and proceedings that did not result in findings of guilt has greater prejudicial effect than probative value. As such the proper administration of justice would not be served by making the records accessible.

[79] Young persons who are dealt with under the Youth Criminal Justice Act are entitled to a presumption of diminished moral culpability as a principle of fundamental justice. This principle is, in part, based on the recognition that "youthful offenders who act out of immaturity, impulsiveness, or other ill-considered motivation are not to be dealt with as if they were proceeding with the same degree of insight into their wrongdoing as more mature, reflective, or considered individuals." R. v. D.B., 2008 SCC 25, [2008] 2 SCR 3, (par.63).

[80] In D.B. Justice Abella, quotes Professor Bala, who described the YCJA as:

… premised on a recognition that to be a youth is to be in a state of "diminished responsibility" in a moral and intellectual sense. Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectual capacity to appreciate fully the consequences of their acts. In many contexts, youths will act without foresight or self-awareness, and they may lack empathy for those who may be the victims of their wrongful acts. Youths who are apprehended and asked why they committed a crime most frequently respond: "I don't know." Because of their lack of judgment and foresight, youths also tend to be poor criminals and, at least in comparison to adults, are relatively easy to apprehend. . . . This is not to argue that adolescent offenders should not be morally or legally accountable for their criminal acts, but only that their accountability should, in general, be more limited than is the case for adults.

[81] Youth records should be regarded in this light. It is important to reiterate that they are distinguishable from adult criminal records.

[82] The society has had an opportunity to observe A.C. since she was thirteen years of age. They have been investigating her abilities as a parent since J.W. was born. They likely have a great deal of evidence upon which to base their on-going assessment of her parenting abilities. Should the matter proceed to trial, the case will be decided based on probative evidence. What the production of police records has revealed is a large number of charges and very few findings of guilt.

[83] I have indicated earlier, records applications involve a balancing of a valid public interest and the privacy interests of young people dealt with under the YCJA. There is a great public interest in child protection proceedings, and there is also a great public interest in maintaining the privacy of records generated when young people are the subject of police investigations and criminal prosecutions. It is fair for A.C. to say "I am not the person that I was when I was in care." Although she is an adult, A.C. remains entitled to the privacy protections under the Act. In my view the society does not have a valid and substantial interest in the records governed by section 123, and access to the records is not necessary in the interest of the proper administration of justice.

Conditions on Access

[84] I have granted the society access to the records regarding the robbery and a charge of failing to comply with recognizance that was subject to the five year access period. The society wishes to use the documents, in part, for purposes of a parenting capacity assessment. Indeed, Society counsel indicated she intends to provide the assessor with copies of all the records.

[85] The fact that access to the society is granted with respect to those records does not mean that any third party chosen by the society is entitled to access to them. The police records are not eye witness accounts. They contain a great deal of hearsay, and there is no guarantee of their credibility, reliability, or accuracy. In my view this use of the records would be prejudicial to A.C., and may jeopardize her privacy under the Act.

[86] An order granting access under section 119 (1) (s) does not entitle the society to provide access to these records to third parties. This proposition flows from section 129 of the Act which provides as follows:

No subsequent disclosure

129 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.

[87] I am not prepared to authorize further distribution to the assessor of the documents beyond the children's aid society and A.C.'s counsel.

Order

[88] My Order is as follows:

1. The Children's Aid Society of Toronto per M. Cheung, counsel, is granted access to the youth records attached hereto (being the records in respect of the robbery charge with offence date April 30, 2012, and the fail to comply recognizance charge with offence date between and including February 12, 2012 and February 18, 2012) and marked as "Schedule 'A'";

2. The balance of the application is dismissed and there will be no access to any other police records dealt with in the application;

3. The records are released to the Society for purposes of use in child protection proceedings File No. C82107/15, regarding the child J.C., born 2015. Such use does not include distribution to a person or persons involved in any assessments pursuant to section 54 of the Child and Family Services Act or retained for purposes of a psychological or psychiatric assessment of A.C.;

4. The records may not be possessed, distributed, published, or used in any way other than as required for the child protection proceeding;

5. Counsel for the Children's Aid Society shall forthwith provide copies of the records to counsel for the respondents in the proceeding. The copies of the records are to be maintained in counsels' file under conditions of strict confidentiality. The records may not be possessed, distributed, published, or used in any way other than as required for the child protection proceeding.

6. The records are not to be copied for the Respondents, who may review the records in the presence of their counsel in the proceeding. If the respondents become unrepresented, they may arrange to view the documents at the society offices. No copies or images of the records are to be made by the respondents;

7. The society shall keep a copy of the records within its legal file for viewing by the service team in the legal department and the society will not upload the records to the remainder of the file or to any data base;

8. Any issue regarding the admissibility of the records in the child protection proceeding will be determined by the Court having carriage of the proceeding;

9. The records are to be destroyed at the conclusion of the proceeding regarding J.C. Any further access to the records will be determined by a Youth Justice Court Judge on a fresh application.

Released: December 20, 2016

Signed: Justice M. L. Cohen

Endnotes

Effect of End of Access Periods

Section 128(1) Subject to sections 123, 124 and 126, after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

Disposal of Records

Section 128(2) Subject to paragraph 125(7) (c), any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for any province, at any time before or after the end of the applicable period set out in section 119.

Disposal of R.C.M.P. Records

Section 128(3) All records kept under subsection 115(3) shall be destroyed or, if the Librarian and Archivist of Canada requires it, transmitted to the Librarian and Archivist, at the end of the applicable period set out in section 119 or 120.

Purging CPIC

Section 128(4) The Commissioner of the Royal Canadian Mounted Police shall remove a record from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police at the end of the applicable period referred to in section 119; however, information relating to a prohibition order made under an Act of Parliament or the legislature of a province shall be removed only at the end of the period for which the order is in force.

Exception

Section 128(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect.

Authority to Inspect

Section 128(6) The Librarian and Archivist of Canada may, at any time, inspect records kept under sections 114 to 116 that are under the control of a government institution as defined in section 2 of the Library and Archives of Canada Act, and the archivist for a province may at any time inspect any records kept under those sections that the archivist is authorized to inspect under any Act of the legislature of the province.

Section 128(7) For the purposes of subsections (2) and (3), destroy, in respect of a record, means

• (a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and

• (b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form.

2002, c. 1, s. 128; 2004, c. 11, s. 49; 2012, c. 1, s. 159.

Pre-Sentence Report Requirements

Section 40(2)(iv) of the Youth Criminal Justice Act sets out the requirements for the contents of a pre-sentence report. Section 40(2)(iv) provides that

(2) A pre-sentence report made in respect of a young person shall, subject to subsection (3), be in writing and shall include the following, to the extent that it is relevant to the purpose and principles of sentencing set out in section 38 and to the restrictions on custody set out in section 39:

(iv) subject to subsection 119(2) (period of access to records), the history of … extrajudicial sanctions used to deal with the young person and the response of the young person to those measures or sanctions…