Court File and Parties

Ontario Court of Justice

Date: 2019-06-26

Court File No.: Toronto CFO-04-10302

Between

Native Child and Family Services of Toronto

and

K.G., C.G. and T. First Nations, Respondents

and

Her Majesty the Queen, an Interested Party

Before: Justice Sheilagh O'Connell

Heard on: May 15, 2019

Ruling on: June 26, 2019

Counsel

Adit Sommer-Waisglass — counsel for the applicant

Respondent K.G. — on her own behalf

Patric R. Senson — counsel for the child, I.G., Office of the Children's Lawyer

No one appearing for C.G. — not present

No one appearing for T. First Nation or the Crown — although duly served

Endorsement

Introduction

[1] This is a child protection proceeding involving the youth I.G. ("I.G."), who is 15 years old.

[2] Mr. Senson, counsel for I.G. has brought a motion that the Court constitute herself as a youth court for the purpose of reviewing affidavits filed in this child protection proceeding, so that an order can be made regarding the release of youth criminal records or information in the child welfare proceedings.

[3] Mr. Senson is seeking to strike several portions of the affidavits of child protection workers which refer to the young person's criminal history and police involvement. He relies upon sections 118 and 119 of the Youth Criminal Justice Act, S.C. 2002, c.1 (the "YCJA").

[4] The society opposes the motion and seeks permission to refer to I.G.'s youth criminal justice records or information pertaining to those records in the child protection workers' affidavits for the purpose of the child protection proceeding regarding I.G.

[5] K.G. is I.G.'s mother and she supports the motion brought by the Office of the Children's Lawyer on behalf of her son. The Respondent C.G. did not participate in this motion and T. First Nations and the Crown take no position, despite being served with notice.

Brief Background

[6] Native Child and Family Services of Toronto ("NCFS" or "the society") has a lengthy history with this family, dating back to 2004. I.G. was first apprehended from his mother's care by the Children's Aid Society of Toronto on March 12, 2004. On July 19, 2004, following a transfer of the case to NCFS, I.G. was returned to his mother's care, where he remained until July 30, 2007.

[7] On July 30, 2007, NCFS received a report from a hospital that the mother was being treated for a self-inflicted knife wound to her arm and that she had sent her children to live with the maternal grandmother. NCFS completed an out-of-care kinship assessment of the maternal grandmother and the children continued to reside with their maternal grandmother until August of 2008.

[8] In August of 2008, the maternal grandmother advised that she was no longer able to care for the children. On August 20, 2008, the children were brought into the temporary care and custody of NCFS.

[9] On February 28, 2011, on the consent of all parties and on the basis of a Statement of Agreed Facts signed by the parties, including the mother, I.G. and his brother were made crown wards with terms of access.

[10] There were difficulties finding an appropriate placement for I.G. He was placed on an extended access visit with family members and eventually returned to his mother's care on July 30, 2017 on an extended access visit with the goal of family reunification.

[11] On August 10, 2017, the mother called the police to have I.G. removed from her care as she stated that she could not manage him. On August 15, 2017, I.G. was placed at the Bayfield Treatment Centre's Eagle Rock House near Trenton, Ontario. He remained there until April 17, 2018, a period of approximately nine months.

[12] On April 17, 2018, following a weekend visit at his mother's home, arrangements were made for I.G. to be picked up and returned to Bayfield. The mother would not permit the society to pick up I.G. and return him to Bayfield.

[13] From April 17, 2018 to May 31, 2018, NCFS was not able to have any contact with I.G. despite repeated efforts to contact him, nor was I.G.'s counsel. Numerous efforts were made to engage the mother which was not successful. I.G was 14 years old at the time.

[14] There were a number of court appearances in which the mother, her support persons, social workers and supervisors of the society participated in an attempt to resolve issues. NCFS was no longer able to provide care for I.G. or services to the family as a result of the mother's position. It was apparent that the only alternative for I.G. at that time was to seek to terminate the crown wardship order.

[15] On August 28, 2018, on consent of all parties, the crown wardship order regarding I.G. was terminated and I.G. was once again returned to his mother's care. No supervision order was put in place as the mother did not wish to engage or cooperate with the society.

[16] On October 18, 2018, Toronto Police Services contacted NCFS to report a telephone call received from the mother. The mother called police and advised that I.G. was acting violently and that she was fearful of I.G. Police attended at the mother's home and found I.G. barricaded inside the apartment. He was removed from the mother's home at the mother's request.

[17] I.G was criminally charged for a number of alleged offences regarding what had occurred in his mother's home, including damage to a broken door and punched holes in the walls which the mother reported were due to I.G.'s outbursts.

[18] On October 22, 2018, I.G. was placed back into the temporary care and custody of the society. NCFS commenced a new child protection application seeking a final order for extended society care[1] for I.G for the following reasons:

• The length of time that I.G. has been in care throughout his life;
• The mother's acknowledgement that she could not manage I.G.'s behaviors and that she did not wish him to return to her care;
• I.G.'s significant emotional and behavioral needs.

[19] Following I.G.'s return to care, as a result of a number of very serious criminal charges, including charges arising from time in his mother's care as well as society care, I.G. was detained at the Roy McMurtry Youth Centre, a secure custody facility.

[20] In January of 2019, the mother contacted the society and advised that she had changed her mind and now wanted I.G. returned to her care again. The mother wanted the protection application terminated or withdrawn.

[21] On February 5, 2019, I.G. was before Justice B. Weagant in youth criminal court. I.G. was still detained at the Roy McMurtry at the time. Following that court appearance, I.G was released on bail conditions and placed in what was described as a therapeutic or specialized group home in Niagara Falls which included "one to one staff support."

[22] Following his release from custody, discussions regarding family reunification took place between the society and the mother. I.G. had a number of visits with his mother at her home and in the community, including an extended access visit with the mother and his siblings in British Columbia at an Indigenous Spring Gathering, paid for and arranged by NCFS. He returned to the group home following his trip to British Columbia with his family.

[23] On or about April 16, 2019, I.G. left his group home without permission and allegedly stole a car. He was found by police and again detained at the Roy McMurtry while facing a number of additional criminal charges.

[24] On May 2, 2019, I.G. was before Justice M. Pawagi in this court's Aboriginal Youth Court, a youth criminal court for Indigenous young persons at 311 Jarvis. He was facing more than 25 criminal charges. I.G. entered guilty pleas to some of the charges and was found guilty of theft of a motor vehicle, dangerous operation of a motor vehicle, and fail to stop for the police. He was sentenced to a twelve month probation order. I.G. was released from the Roy McMurtry following that appearance and returned to the group home in Niagara Falls.

[25] On May 8, 2019, I.G. was taken into custody by Niagara Police. It is alleged that he assaulted two staff members of the group home, damaged property and threatened to kill both staff members by stabbing. I.G. was being held at the Peninsula Youth Centre near St. Catherine's for a period of time.

[26] Sometime after being released from that facility, I.G. went "AWOL" or missing from the society's care again. It is believed that he is back in his mother's care, although the mother is not cooperating with the society and she would not confirm or deny this information.

[27] All of the above information was obtained from a review of the society's child protection applications and the affidavits of the child protection workers Michele Scott and Elsie Pettiquan.

[28] The information contained in the child protection worker's affidavits was largely within their personal knowledge as either one or both workers attended numerous youth court justice appearances with I.G., including the Aboriginal Youth Court where NCFS participates with other service providers as a support for I.G. The mother also attended some of these youth court appearances.

The Law and Governing Principles

[29] Part 6 of the YCJA contains a comprehensive statutory scheme which governs the protection of privacy of young persons and the retention and access to youth records.

[30] Section 110 of the YCJA provides that "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", subject to certain exceptions.

[31] Further, access to youth records created or kept for the purposes of the YCJA are strictly limited.

[32] Section 118 provides that except as authorized under the Act, no person shall be given access to a record kept under the Act 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.

[33] Section 2 of the YCJA defines "record" as including:

"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." [Emphasis added.]

[34] The rationale for the protection of the privacy of young persons under the YCJA and of youth records is understandable. A primary goal of the YCJA is to limit the stigmatization that attaches to a young person who has committed or is accused of committing a criminal offence. This goal is consistent with the presumption of diminished moral blameworthiness and culpability that the Supreme Court of Canada identified as a principle of fundamental justice in R. v. B. (D.) Speaking for a unanimous court, Justice Abella states the following at paragraph 41 of that decision:

"...namely that because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment."

[35] Further, in the Supreme Court of Canada's decision in R. v. C. (R.), 2005 SCC 61 Justice Fish states the following in considering the rights of a young person charged:

"In protecting the privacy interests of young persons convicted of criminal offences, Parliament has not seen itself as compromising, much less as sacrificing, the interests of the public. Rather, as Binnie J. noted in F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35, protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society."

"Stigmatization or premature labeling 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 in redirection, rendered the stigma a self-fulfilling prophecy." [par. 42]

[36] As well, in accordance with Canada's international obligations, the YCJA affords young people special guarantees in recognition of their diminished moral blameworthiness or culpability. (See s. 3 of the Act). The UN Convention on the Rights of the Child recognizes the "physical and mental immaturity" of young people and their need for "special safeguards in care, including legal protection". Rule 8 of the UN Standard Minimum Rules for the Administration of Juvenile Justice provides:

"The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labeling. In principle, no information that may lead to the identification of the juvenile offender shall be published."

[37] Even when access is permitted, Parliament seeks to protect young person's privacy interests by limiting dissemination of the information in the records after access is granted.

[38] Section 129 of the Act reads that 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.

[39] Section 119 and section 123 of the Act permit access to youth records in specific circumstances.

[40] Section 119 of the Act provides that certain classes of persons are entitled to access to records kept under section 114 (youth court records) if the request is made within the access period defined in section 119 (2) of the Act.

[41] These classes of persons include the young person, the young person's parents, the young person's counsel, and victims of offences or alleged offences, among a number of other classes of persons.

[42] In particular, for the purpose of the motion before me, section 119(1) (n) provides that the following persons, on request, shall be given access to a record kept under section 114, and may be given access to a record made under section 115 and 116:

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

(i) acting in the exercise of his or her duties under this Act;

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

[43] Further, section 119 (1) (s), also provides that a person or any member of a class of persons that a youth court judge considers has a valid interest the youth record may be given access to records if the youth court judge considers that the victim 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 "desirable in the interest of the proper administration of justice."

[44] The length of the access period to a youth record under section 119(2) depends on the date and the nature of the disposition of the criminal charge. For example, if a charge against the youth has been withdrawn, then the access period ends only two months after the withdrawal of the charge (s. 119(2) c).

[45] If the young person has been acquitted then the access period is two months ending after the time allowed for the taking of an appeal (s. 119(2) b). If the young person has been found guilty of the offence and the youth sentence is a conditional discharge, then the access period ends three years after the young person is found guilty (s. 119 (2) g). If the young person is found guilty of an indictable offence, then the access period ends five years after the sentence imposed has been completed (s. 119(2) h)).

[46] If the application for access to a youth's record is brought after an access period has expired, then section 123 applies. Unlike an application under section 119, section 123 requires notice to the young person. Further, the test under section 123 is more onerous.[2]

Application of the Law and Governing Principles to this Case

[47] In this case, for the reasons below, it is not necessary for me to sit as a youth criminal court justice to dispose of the motion brought by I.G.'s counsel.

[48] A plain reading of the YCJA provides that Native Child and Family Services of Toronto has not violated Part 6 of the YCJA in this child protection application.

[49] NCFS has not published the name of I.G. or published any other information related to I.G. that would identify I.G. as a young person dealt with under the YCJA, in accordance with section 110 of the YCJA.

[50] Child protection proceedings are private, in accordance with section 87(4) of the Child Youth and Family Services Act, 2017, S.O. 2017, C. 14 (the "CYFSA"). The publication of any information identifying a child or a youth is prohibited pursuant to section 87 (8) of the CYFSA. The distribution of court transcripts is also restricted and limited and cannot identify a youth or child in a child protection proceedings. Further, the court can prohibit the publication of any identifying information under section 87(9) of the Act and penalties are provided for the breach of these provisions under 143(3) of the Act.

[51] I.G.'s right to privacy is protected at all stages of the child protection proceeding.

[52] Further, NCFS is not seeking access to I.G.'s youth records kept or created under the statutory scheme established in Part 6 of the YCJA. NCFS already has this information in its own records, based on the personal knowledge and involvement of its child protection workers with I.G, as part of their child protection investigation.

[53] As noted earlier, section 2 of the YCJA defines "record" as "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." [Emphasis added.]

[54] The information regarding I.G.'s youth criminal involvement in the society worker's affidavits was created for the purpose of the child protection proceeding and was largely within the workers' personal knowledge as either one or both child protection workers attended the numerous youth court justice appearances with I.G. as his legal guardian, to act as a support and resource for I.G. and to assist the youth criminal justice in understanding I.G.'s experience of trauma and risk as a child in need of protection. The child protection records are not youth criminal justice records.

[55] I.G. has pleaded guilty to some very serious criminal offences and he is also facing a number of criminal charges involving serious allegations of violence. He is only 15 years old. He is what has been described as a "cross-over youth", which is a significant sub-set of vulnerable, at-risk youth involved in both the child welfare and youth criminal justice systems.

[56] The information regarding I.G.'s ongoing youth criminal justice involvement is therefore necessary and relevant to the issues central to the child welfare proceedings: the determination of whether I.G. is a child or youth is in need of protection and if so, what plan of care is in I.G.'s best interests.

[57] Indeed, the federally and provincially funded "Cross-Over Youth Project" was designed to help prevent youth in care, from "crossing over" into the youth criminal justice system, in part by attempting to break down the "silos" between the child welfare and youth criminal justice systems. The goal of the project is to create better outcomes for these marginalized youth, many of whom "cross-over" as a result of their history of trauma and of being in care.

[58] In conclusion, this court does not need to constitute itself as a youth criminal justice court as the information contained in the affidavits of the child protection workers in this proceeding are not "youth records" as defined by section 2 of the YCJA. The information contained in the child protection affidavits is subject to a publication ban under the CYFSA and for greater clarity, the court prohibits the publication of any information in those affidavits, pursuant to section 87(8) of the CYFSA.

[59] However, if I am wrong in the above analysis, then it is also clear that NCFS is entitled to access information in I.G.'s youth records by operation of section 119 (1) (n) of the YCJA.

[60] It is not disputed that the information contained in the child protection proceedings regarding I.G.'s youth criminal justice involvement relate to ongoing criminal charges that have not yet been resolved and charges that have only recently been resolved this year. I.G. entered into a number of guilty pleas in February and May of 2019, resulting in probation orders. There are also a number of pending criminal charges. I.G. is also "AWOL" and currently in breach of criminal probation conditions.

[61] Section 119 would therefore apply, as access to those youth records and information remain open.

[62] Native Child and Family Services of Toronto is a member of a class of persons entitled to access to I.G.'s records, pursuant to section 119 (1) (n) of the YCJA which grants access to a government agency "engaged in the supervision or care of the young person, whether as a young person or an adult, in an investigation related to the young person under an Act of the legislature of a province respecting child welfare ,…". I.G. is the subject of this child protection application and NCFS is supervising his care under the Child Youth and Family Services Act.

[63] Therefore, even if I did agree that it was necessary for me to sit as a youth criminal justice court to determine this motion, I would find that NCFS had the right to access to I.G.'s youth records pursuant to section 119(1) (n) of the YCJA and that the records were necessary and relevant to the determination of the child protection issues and "desirable in the interest of the proper administration of justice."

Conclusion

[64] For the reasons set out above, the motion brought by counsel for the child is dismissed.

Released: June 26, 2019

Signed: Justice Sheilagh O'Connell

Footnotes

[1] "Extended society care" is what was formerly known as "crown wardship" before the changes to the legislation which came into effect under the new Child, Youth, and Family Service Act on May 1, 2018.

[2] Section 123 (1) provides that a youth justice court judge may, on application 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 youth record kept under sections 114 to 116 if the youth 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.