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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

Date: 2018-02-14

Court File No.: 18-Y182014-03

Between:

Toronto Community Housing Corporation Applicant

— AND —

Her Majesty the Queen Respondent

— AND —

R.V., a young person Respondent

Before: Justice Alex Finlayson

Heard on: February 8, 2018

Reasons for Judgment released on: February 14, 2018

Counsel

Megan Andrews — counsel for the Applicant

Miriam Henry — counsel for the Crown

No one appearing on behalf of R.V., although duly served

Decision

ALEX FINLAYSON J.:

A. Nature of this Proceeding

[1] This is the Toronto Community Housing Corporation's ("THCH") application for access to Youth Court records pursuant to the Youth Criminal Justice Act, S.C. 2001, c. 1. The Respondent, R.V., is a tenant in a TCHC property. TCHC filed affidavit evidence alleging that R.V. had committed an offence on one of its properties on a specific date. TCHC wishes to commence proceedings to terminate R.V.'s tenancy pursuant to sections 61 and 66 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, as amended. It seeks access to Youth Court records for use in those proceedings.

[2] To understand the context in which this records application is brought, it is necessary for me to set out the applicable provisions of the Residential Tenancies Act. Sections 61(1), 66(1), 69(1) and 75 read:

Termination for cause, illegal act

61 (1) A landlord may give a tenant notice of termination of the tenancy if the tenant or another occupant of the rental unit commits an illegal act or carries on an illegal trade, business or occupation or permits a person to do so in the rental unit or the residential complex.

Termination for cause, act impairs safety

66 (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

Application by landlord

69 (1) A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act or the Tenant Protection Act, 1997.

Illegal act

75 The Board may issue an order terminating a tenancy and evicting a tenant in an application under section 69 based on a notice of termination under section 61 whether or not the tenant or other person has been convicted of an offence relating to an illegal act, trade, business or occupation.

B. Preliminary Issues

[3] This matter initially came before me on February 8, 2018. On that date, TCHC raised several preliminary issues.

[4] Notwithstanding the facts alleged in the affidavits that TCHC filed, and although it has reason to believe that R.V. was the subject of proceedings under the Youth Criminal Justice Act relating to a criminal offence that allegedly occurred on its property, without access to this Court's file, it cannot confirm this for certain. Further, without specific information as to the nature of the charges, the disposition dates and the actual dispositions, it does not know whether to make submissions for access to the records pursuant to the test articulated in section 119(1)(s)(ii) of the Youth Criminal Justice Act, or pursuant to the more stringent test required by section 123. Finally, TCHC does not know fully what records may exist. Consequently, TCHC sought directions from the Court respecting how to proceed and its Notice of Application was framed broadly as a request for "court and police records".

[5] This records application poses a 'chicken and egg' problem, colloquially speaking. Section 118 of the Youth Criminal Justice Act prohibits access to records kept under sections 114 to 116, and it prohibits the information contained therein from being given to any person, where to do so would identify the young person to whom the record relates as a young person dealt with under the Act. These prohibitions are subject to various limitations in the Act, including that this Court may grant a right of access under sections 119 and 123. However, access to the records in this case has not yet been argued or granted for the reasons articulated above. Despite that, TCHC seeks access to certain information in advance, to enable it to argue for that very access.

[6] To solve this problem, TCHC proposed the bifurcated process that Justice Sheilagh O'Connell followed at ¶ 14 of Boyer v. Huang, 2017 ONCJ 272. First, TCHC asks the Court to confirm that R.V. was the subject of proceedings pursuant to the Youth Criminal Justice Act and to obtain and review the records concerning R.V. It asks the Court to then provide a schedule to counsel setting out the offence dates, the disposition dates, the precise disposition and the applicable access period. Finally, once the schedule is delivered, argument will proceed on a date to be scheduled.

[7] Based on the evidence filed and submissions I heard on February 8, 2018, I agreed to follow the approach in Boyer v. Huang. However, during argument, I suggested to counsel that depending on the contents of the records, additional steps may be required.

[8] This is because I inquired from counsel as to the kinds of records it wanted the Court to obtain and review. The Crown took no position respecting the records application, but to assist the Court, the Crown suggested that the Court only obtain and review the Information relating to R.V.'s involvement in the events alleged to have occurred on the date mentioned in TCHC's application, if such an Information even exists. Counsel for TCHC agreed.

[9] I then inquired whether the Court should review additional records in the event that the Information reveals a disposition with no finding of guilt. As set out above, section 61(1) of the Residential Tenancies Act does not require proof of a conviction on a criminal standard of proof. Indeed, neither section 61(1) nor section 66(1) necessarily involve a tenant having been involved in the criminal justice system at all. Therefore, a disposition with no finding of guilt would not necessarily end the TCHC's request for access to records in this case as it may end up seeking additional records to prove its case on the civil standard in such a scenario. Nevertheless, TCHC agreed that the Court obtain and review the Information only as a first step.

[10] Therefore, I granted an order that the Information relating to R.V., if it exists, be delivered to this Court for my review, and that it not be given to the Crown or the TCHC, subject to further order.

C. The Court's Review

[11] After my review of the material, the Court is providing certain details to counsel in a separate schedule. This detail is being provided on a strictly without prejudice basis solely to permit argument, and is being provided on a number of conditions set out below. Unless and until access is granted, the TCHC is not permitted to use any of the details contained in the schedule in any tenancy proceedings, or for any other purposes, other than those authorized by this Endorsement.

D. Service upon R.V.

[12] This records application will proceed pursuant to section 119(1)(s)(ii) of the Act. Because TCHC was uncertain whether to proceed under section 119(1)(s)(ii) or section 123, TCHC had served R.V. personally [1] with its application out of an abundance of caution, along with service to the Crown. R.V. did not attend Court on February 8, 2018 despite being served.

[13] During the attendance on February 8, 2018, counsel for TCHC referred to this application as a "test case". I understood that to mean that there are no reported cases in which a landlord, and more specifically a landlord of a public housing complex, seeks access to youth court records of one of its tenants, for the purposes of eviction proceedings, based on actions allegedly committed on its property while the tenant was a young person.

[14] I am concerned that R.V. should be given a right to be heard respecting this proceeding. This raises an issue about the Court's jurisdiction to permit this.

[15] Unlike if this were a records application brought pursuant to section 123 of the Act, there is no requirement that R.V. be given notice of an application pursuant to section 119(1)(s)(ii) of the Act. On the face of the statute and based on principles of statutory interpretation, there is no general right to notice. See Knight v. Indian Head School Division No. 19 (1990), 69 D.L.R. (4th) 489 (S.C.C.).

[16] That said, there is also no express prohibition against requiring notice in an appropriate case either. In my view, this is one such case. I find that it is desirable that R.V. be heard respecting this records application. I say this for the following reasons.

[17] As part of the balancing exercise required by section 119(1)(s)(ii) of the Act, the Court will have to balance R.V.'s privacy interest against any "valid interest" in the record in favour of disclosure, if it is "desirable in the interest of the proper administration of justice" to grant access and permit the records to be used. When balancing these competing interests, the Court must consider the policy enshrined in section 3 of the Act, and in particular the concept of diminished moral blameworthiness.

[18] At ¶ 25 of R. v. Z.W., [2016] O.J. No. 4254, when discussing access periods under the Act, Justice Marion Cohen stated, "[t]he inaccessibility of the youth records protects the youth from the long term negative consequences of his or her youthful offending behaviour, and is in keeping with the rehabilitative intentions of the Act."

[19] This records application concerns a request for access to records for use in a subsequent administrative tribunal proceeding, as opposed to a subsequent criminal proceeding. While Courts have engaged in this balancing act previously when records have been sought for use in subsequent civil cases and in cases before tribunals, the potential "negative consequences from his or her youthful offending behavior", if that "youthful offending behavior" is proven in the tribunal setting, may be very serious and profound for R.V. TCHC wants records to be used to cause R.V.'s eviction from affordable housing.

[20] This is not to say that access cannot or ought not be granted. The Act makes provision for access in appropriate circumstances. Indeed, TCHC intends to argue for access to pursue a mandate to protect the safety of its other residents. But unlike TCHC, R.V. is not represented and he does not have a statutory right to notice of this proceeding under the Act.

[21] While I assume that R.V.'s financial resources are limited given that he resides in low income housing, I have no information about R.V.'s personal circumstances, which will invariably be relevant to the Court's balancing exercise under the Act. If R.V. is evicted, he may not be able to secure other accommodations. This is some of the context in which R.V.'s privacy interest should be considered. The Court prefers to not be in the situation of having to consider R.V.'s interests in a vacuum in this case, without at least giving him another opportunity to present important information of his personal circumstances and his point of view.

[22] I also note that R.V. has a right to participate and be heard in the future proceedings before the Landlord and Tenant Tribunal. This includes the right to make submissions about disclosure. See sections 5, 5.4 and 10 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended. However, as the Tribunal does not have jurisdiction over youth court records, access must be dealt with by this Court. I do not wish to deprive R.V. of the right to be heard as a result of the manner in which these two processes are intersecting.

[23] Finally, the fact that this application has been brought more proximate in time to the disposition of this Court's process, such that section 119(1)(s)(ii) applies instead of section 123 with its consequent right of notice, does not change or weaken the need for the Court to hear from R.V. On the facts of this case as currently presented, I cannot see how the impact of disclosure to R.V. would be any different if TCHC had waited a few more months to bring its application. The only difference would be that this additional delay would have triggered the operation of section 123 of the Act, instead of section 119. Then R.V. would be entitled to notice.

[24] I am therefore giving directions so that further notice is given to R.V. In addition to the analysis that I have set out above, I also base my decision on rule 1.1 of the Criminal Rules of the Ontario Court of Justice which requires that this proceeding is dealt with justly and efficiently. This includes dealing with the parties fairly, recognizing the rights of the accused, and scheduling the case having regard to its complexity and the severity of consequences for the accused, in this case the young person. I further find that this Court has jurisdiction to permit R.V.'s participation on this application as part of the Court's inherent jurisdiction to control its own process. See R. v. Felderhof; Catholic Children's Aid Society of Toronto v. T.K.; R. v. Gioronda, 2006 ONCJ 425 (C.J.); R. v. Schmidt, 2008 ONCJ 804.

[25] Although R.V. chose not to attend on February 8, 2018, I wish to make absolutely sure that R.V. fully comprehends the nature of the proceeding before the Court, and the potential impact to him consequent upon the Court's ruling. Alternatively, he may wish to use the record himself, should he decide that the records assist him, and this can be dealt with on the return.

[26] During argument on February 8, 2017, given R.V.'s failure to attend, I inquired whether notice should be sent to R.V.'s former counsel in the youth court proceedings before this Court. Neither counsel for TCHC or the Crown objected to this approach.

[27] Alternatively, as the Crown is not taking a position and given the interests at stake and the novel use for which the TCHC seeks access to the records, if R.V. chooses not to attend and make submissions, or if he is unrepresented, the Court will consider whether to appoint amicus.

E. Orders

[28] I make the following orders:

(a) Subject to further Order of this Court and except as set out further below, no person shall divulge, disclose or publish any information, for any purpose, in any fashion, that would identify R.V. as a young person dealt with under the Youth Criminal Justice Act, except as is necessary to permit argument of this records application;

(b) Subject to further Order of this Court and except as set out further below, no person shall divulge, disclose or publish the Schedule that is attached to this judgment, except as is necessary to permit argument of this records application;

(c) For further clarity, and subject to further Order of this Court, TCHC is specifically prohibited from using the information divulged in this Endorsement or the attached schedule in any proceedings under the Residential Tenancies Act against R.V.;

(d) Notwithstanding paragraphs (a) and (b), this Endorsement and the attached Schedule, and the information contained in them may be shared with any associates or employees within the offices of counsel involved in this records application for the purposes of assisting with the preparation of the records application. However, any associates or employees within the office of counsel are subject to the same conditions to not divulge, disclose or publish that are set out in this Endorsement;

(e) Notwithstanding paragraphs (a) and (b) above, the TCHC shall also provide this Endorsement and the attached schedule to R.V. and to former counsel for R.V. who is identified in the schedule. The Court requests that if R.V.'s former counsel has the ability to contact R.V., that he explain the nature of this records application to R.V. and that this Court is giving R.V. the right to make submissions. As with paragraph (d), the same conditions apply respecting R.V.'s former counsel or any other lawyer that may end up assisting R.V., and that lawyer's associates or employees are subject to the conditions to not divulge, disclose or publish that are set out in this Endorsement;

(f) If, as a result of the detail provided in the attached schedule, TCHC is now requesting access to other documents, then it should come prepared on the March 9, 2018 return date with a list of the additional documents it requests so the Court can follow a similar process in advance of argument;

(g) When the records application is argued, the Court will require a factum and case law from TCHC that addresses the applicable legal test governing access to the records sought, and how the competing factors should be balanced. To consider the argument, it will also require statutes, case law and analysis explaining the applicable legal tests and the procedure that will apply in the proceedings under the Residential Tenancies Act;

(h) The Court also requires a supplementary affidavit from TCHC setting out the periods of time that R.V. is/was a tenant on TCHC property, whether any other individuals are co-tenants or share his residence, and any other evidence that might be relevant in this matter or the subsequent proceedings under the Residential Tenancies Act so that the Court can fully consider the competing interests on this records application;

(i) If R.V. chooses to attend and make submissions, R.V. may wish to file an affidavit for the reasons articulated above;

(j) If R.V. does not attend Court or have representation, then submissions are required respecting whether the Court should appoint amicus curiae. Notwithstanding paragraphs (a) and (b) above, TCHC may wish to consider providing a copy of this endorsement to Justice for Children and Youth. If it chooses to do so, then Justice for Children and Youth are subject to the same conditions to not divulge, disclose or publish that are set out in this Endorsement; and

(k) The next Court date in this matter is March 9, 2018 at 10:00 am at which point any remaining procedural issues shall be addressed and then a date for argument can be set.

Released: February 14, 2018

Signed: Justice Alex Finlayson

[1] R.V. and the record holder are entitled to at least five days' notice in writing and a reasonable opportunity to be heard if this records application is pursuant to section 123(3) of the Youth Criminal Justice Act.