WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Ontario Court of Justice

Date: 2021 02 22 Court File No.: SUDBURY C-231-11

BETWEEN:

THE CHILDREN’S AID SOCIETY OF THE DISTRICTS OF SUDBURY AND MANITOULIN Applicant,

— AND —

A.A. Respondent (Child)

Before: Justice Andrew L. Buttazzoni

Heard on: February 12, 2021 Reasons for Judgment released on: February 22, 2021

Counsel: Dawn V. Dubois............................................................... counsel for the applicant society Suzanne Y. Côté .................................................... OCL counsel for the respondent child

BUTTAZZONI J.:

[1] The Children's Aid Society of the Districts of Sudbury and Manitoulin (hereafter referred to as the “Society”) has brought an application for secure treatment with respect to the child A.A. pursuant to Part VII of the Child, Youth and Family Services Act, 2017. The application is scheduled to be heard before Justice J. Kukurin commencing February 24, 2021.

[2] The first return date for this matter was before me on February 11th, 2021. At that time Ms. Côté, (OCL) counsel, took issue with the admissibility of certain pieces of evidence contained within the Society's application. After hearing briefly from both counsel, I asked OCL counsel to prepare a formal motion together with written submissions. Similarly, I asked for the Society to provide me with their written reply. Both counsel have been kind enough to provide me with their respective factum and Book of Authorities. Given the strict timelines for this application I agreed to hear this motion prior to the commencement of the hearing of the application and to provide my reasons by February 22, 2021.

[3] On February 12, 2021, Ms. Côté brought a motion seeking the following relief:

1. An order striking the application of the Society dated February 11th, 2021 or, alternatively;

2. An order striking and sealing the Society's application and allowing the Society to refile the application without any reference to Y.C.J.A. information; and,

3. An order that there shall be no references to any Y.C.J.A. information in any of the evidence adduced at the upcoming hearing.

[4] Ms. Côté takes the position that the Society, in its original application, has inappropriately referenced information relating to Y.C.J.A. involvement by the child A.A. without first having obtained the requisite Youth Court order pursuant to the Youth Criminal Justice Act. Ms. Côté submits that the use of inappropriately obtained Y.C.J.A. information within the application and subsequent proceeding contravenes the law and results in an abuse of process.

[5] The Society takes the position that the purported objectionable information is admissible in the absence of a youth court order as the information was obtained during their involvement with the child as his legal guardian. Furthermore, because the information was prepared by the Society's workers and is contained in its own child protection records it is not a record as defined by the Y.C.J.A.

Brief Factual Overview

[6] The child, A.A. is a child in the extended care of the Society, having been made a Crown Ward on […]. The Society is therefore the legal parent of the child. As a result of its involvement with the child, the Society has legitimately obtained access to information about the child's Y.C.J.A. related involvement.

[7] The Society commenced a secure treatment application dated February 11, 2021.

[8] In its application the Society has included references to information about the child's alleged involvement with police and the courts. The Society did not seek an order from the youth court permitting the use of this information in this proceeding under the CYFSA.

Legal Analysis

[9] From a review of the case briefs provided to me, there appears to be no doubt that the Y.C.J.A. has created its own procedural mechanisms for protecting the privacy interests of youthful individuals involved with the youth justice system. These safeguards highlight the heightened privacy rights of children and recognize the inherent vulnerability of children who come into contact with the youth justice system. In the case of S.L. v. N.B. at paragraphs 35 and 36, Doherty J.A. stated:

[35] Part 6 of the Act entitled “Publication, Records and Information” contains detailed provisions referable to both the publication of the identity of those involved in the youth justice system and access to records generated by that process. An overview of Part 6 demonstrates a clear intention to protect the privacy of young persons. In doing so, the Act seeks to avoid the premature labeling of young offenders as outlaws and to thereby facilitate 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).

[36] Sections 110 to 112 place significant restrictions on the publication of anything that might identify a young offender, a child or young person who is a complainant in a proceeding in Youth Court, or a child or young person who is a witness in such proceeding. These non-publication provisions are not in issue on this appeal. They are, however, indicative of the premium placed on the privacy interests of all young persons involved in young offender proceedings.

[Emphasis added]

[10] Then at paragraph 54, Doherty J.A. stated:

[54] The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records. The language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the Act. Using the words of Cory J.A. in Cook, Parliament in “clear and unambiguous terms” has placed the responsibility for determining access to records on the shoulders of the youth justice court judges. This makes sense. Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

[11] The Society has placed significant weight on two particular decisions.

[12] In the case of Native Child and Family Services of Toronto v. K.G., 2019 ONCJ 457, a decision of Justice S. O'Connell, the court found that child protection records are not youth criminal justice records. Starting at paragraph 52, her Honour stated:

[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 Y.C.J.A. 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. [Italics and underlining in original]

[13] The Nova Scotia Court of Appeal in the case of E.M.Y. v. Nova Scotia (Community Services), 2020 NSCA 46, at paragraph 97, adopted with approval the reasoning of Justice S. O'Connell.

[14] With all due respect to the judicial officers in both levels of court I am of the view that their analysis falls short in that both courts failed to consider the impact of section 129 of the Youth Criminal Justice Act on the admissibility of the impugned evidence. I am of the view that the admissibility of the information contained in the worker’s notes is not determined solely by a consideration of whether the notes were created for Y.C.J.A. purposes. A court must also consider the restrictions articulated in section 129 of the YCJA which reads as follows:

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. [Emphasis added]

[15] As noted by our Court of Appeal in S.L. v. N.B. (supra) at paragraph 43:

Even where access is permitted, Parliament seeks to protect young persons' privacy interests by limiting dissemination of the information in the records even after access is granted.[Emphasis added]

[16] On a plain reading of section 129, the Act prohibits not just the dissemination of the actual youth record itself, but also of the information contained within that record. This prohibition applies to anyone, including a society worker, who has been properly given access to the record or the information contained in the record itself.

[17] Therefore, in circumstances where a Society worker properly obtains access to a record or the information contained in the record, the Society is prohibited from disseminating to anyone the information that has been disclosed to them in the course of the YCJA proceeding. The fact that a Society worker may have recorded the " YCJA disclosed information" in her notebook for CYFSA purposes does not diminish from the privacy protection accorded to that information by virtue of s.129 of the YCJA. In my view, such information can only be disclosed within the context of the CYFSA proceeding after first having obtained an order in youth court pursuant to section 119(1)(s) or section 123(1). Furthermore, the fact that the YCJA information is intended to be used in a CYFSA proceeding which focuses on the best interests of the child, does not diminish or override the privacy constraints imposed by the YCJA.

[18] In paragraph 2(a) of the notice of motion, OCL counsel submits that the following sentences should be deleted from paragraph 16 of the original application: "The police were contacted. The police indicated they would be laying charges." The fact that the police were contacted in my view does not violate any of the provisions of part 6 of the YCJA. Section 3(1)(b)(iii) of the YCJA reinforces the concept that young persons involved in the criminal justice system have enhanced procedural protection to ensure that they are treated fairly and that their rights, including the right to privacy, are protected. The fact that someone may have called the police does not necessarily identify the youth as someone who was dealt with under the YCJA. It is nothing more than narrative. The same however cannot be said with respect to the second impugned sentence. That information clearly identifies the youth as someone who will be dealt with under the YCJA and accordingly leave of the youth court is required in order to include that information. It should be excluded.

[19] In paragraph 2(b), OCL counsel submits that the following information should be excised from paragraph 17 of the Application: "The police attended and spoke to A.A. […].” In my view the reference to “The police attended and spoke to A.A.” is admissible. The information contained after that clearly identifies A.A. as someone who was being investigated under the YCJA and ultimately as someone who was dealt with under the YCJA. I agree with OCL counsel that the balance of the information should be excised. Such information could only have been included with the permission of the youth court.

[20] In paragraph 2(c), OCL counsel takes issue with the following phrase in paragraph 26 of the Application: "The police were contacted when none of the youth could be located." Counsel submits that the words "The police" should be excised. I disagree. The fact that the police were called does not, in my view, identify the youth as someone dealt with under the Youth Criminal Justice Act or as someone who was being investigated for an offence that could be prosecuted under the YCJA.

[21] In paragraph 2(d), OCL counsel objects to the following two sentences in paragraph 27 of the Application: “[…] The first sentence is objectionable as it identifies the youth as someone being investigated under the YCJA. The remaining information is objectionable in that it is referencing extrajudicial measures and hence identifies the youth as someone dealt with under the YCJA. This information should be excised as it was disclosed without an order from youth court.

[22] In paragraph 2(e), OCL counsel objects to the following two sentences in paragraph 39 of the Application: "The police and an ambulance were contacted. The police located both youth." Again, the fact that the police and an ambulance were called does not identify the youth as someone dealt with under the YCJA or being investigated for an offence under that Act and accordingly it need not be excised.

[23] In paragraph three of the notice of motion, OCL counsel has requested an order "that there shall be no references to YCJA information in any evidence received in this proceeding." Unfortunately, I find such a request somewhat vague and I am not prepared to make such an order. In my view it is far more helpful if specific problem areas are identified by counsel so that the court can deal with them appropriately.

[24] It is not lost on me that my ruling will create additional work for the Society. Nonetheless, part 6 of the YCJA codifies the scheme by which statutorily authorized parties can have access to or receive disclosure of a young person's records or the information contained in those records. In addition, the Act goes a step further by prohibiting and penalizing anyone who discloses a young person's record, or the information contained in that record without court authorization.

[25] I agree with OCL counsel that the closed nature of the CYFSA proceedings does not relieve the Society of its obligation to seek a youth court order to disclose YCJA information that it has in its possession about the youth. I appreciate that in this case the Society and the youth are the only parties to this secure treatment application. Furthermore, the Society by virtue of its statutory authority, was a party entitled to have access to the youth's records or information disclosed about the youth during appearances in youth court. However, there will certainly be other cases where there could be multiple parties in the CYFSA proceeding and these parties should not necessarily be getting disclosure of the youth's YCJA involvement simply because the Society has recorded the information in their notes. The privacy protection offered by the CYFSA does not take into consideration the privacy concerns articulated in the YCJA. Without the oversight of the youth court justice, there exists a real risk that parties who would not be authorized to receive information about the youth under the YCJA guidelines would nonetheless be entitled to access that information within the confidential confines of the CYFSA proceeding, thereby compromising the significant privacy interests of vulnerable youths. The fact that the information might not be distributed by the parties in the CYFSA proceeding does not mitigate the potential prejudice and harm that could be occasioned by the youth as a result of inappropriate access to the information.

[26] While not raised by either party in their material I note that the original application contains a copy of the Notice to Parent at tab F. This is clearly a record within the context of the YCJA. The notice identifies the youth by name, the charges he is facing along with the date, time and location of his appearance in the youth court. I am of the view that this document should not have been part of the application without a youth court order.

[27] Finally, I am prepared to make an order striking and sealing the original application of the Society dated February 11, 2021 and permitting the Society to refile the Application without reference to the material that I have excised.

[28] I also intend on making an order that this decision remain under seal in the CYFSA proceeding until such time as it is released by a judge of this court.

Released: February 22, 2021 Signed: Justice Andrew L. Buttazzoni

Addendum:

The original decision remains under seal by the court. In order to protect the identity of the child portions of the original decision have been redacted and the alphabetic letters used to identify the child changed to "A.A.".

Additionally, at paragraph 14, a correction was made to a typographical error in the original decision. The reference to section "29" has been corrected by replacing it with section "129”.