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:
IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.
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:
- OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
ONTARIO COURT OF JUSTICE
CITATION: Doe v. N.G., 2021 ONCJ 406
DATE: 2021 07 28
BETWEEN:
JOHN DOE, by his Litigation Guardian, James Doe,
JANE DOE, and JAMES DOE
Applicants
-and-
N.G., O.M., G.I., and A.F., young persons
Respondents
-and-
MINISTRY OF THE ATTORNEY GENERAL and
CHIEF OF POLICE FOR TORONTO
Respondents
- AND ALSO BETWEEN -
TORONTO POLICE SERVICES BOARD, DETECTIVE CONSTABLE DANIEL
SUNGHING, OFFICER T. SUTTON and CONSTABLE RYAN FRANCIS BRAGANZA
Applicants
-and-
JOHN DOE, by his Litigation Guardian, James Doe, JANE DOE, and JAMES DOE
Respondents
-and-
N.G., O.M., G.I., and A.F., young persons
Respondents
-and-
MINISTRY OF THE ATTORNEY GENERAL and
CHIEF OF POLICE FOR TORONTO
Respondents
An Application under Section 123 of the Youth Criminal Justice Act, S.C. 2002, c. 1
Before Justice B. Weagant
Heard on June 18, 2021
Ruling released on July 28, 2021
Fred Fischer/Graham Thomson ………………… counsel for the Applicants, Toronto Police Services Board, Detective Constable Daniel Sunghing, Officer T. Sutton, and Constable Ryan Francis Braganza
Justin S. Linden/Iain A.C. MacKinnon/Israel Klein …………...…….…counsel for the Respondents: John Doe, Jane Doe and James Doe
Mattison Chinneck/Gail Glickman …………………….counsel for the Chief of Police for the Toronto Police Service
Catherine Ma……………………………………………… counsel for the Ministry of the Attorney General, Crown Law Office-Civil
Sarah De Filippis……………………………………… counsel for the Provincial Crown
WEAGANT, B. J.:
[1] This is a ruling on a preliminary motion, brought by the Attorney General of Ontario and the Chief of Police for Toronto, both of whom are record holders and respondents in an application for Youth Court records under sections 119 and 123 of the Youth Criminal Justice Act (YCJA).
[2] The Applicant, “John Doe by his Litigation Guardian, James Doe, Jane Doe and James Doe”, has commenced an action in the Superior Court of Justice against three young persons and St. Michael’s College, St. Michael’s College School Board members and The Basilian Fathers of Toronto. In this Court, John Doe has applied for production of all records in the possession of the Toronto Police Service and the Crown Attorney’s office relating to the prosecution of sexual assaults that occurred on or about September and October 2018. The application seeks to have the records released to the Ministry of the Attorney General – Crown Law Office Civil, presumably for a vetting pursuant to D.P. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (C.A.).
[3] In the instant motion, the Attorney General of Ontario and the Chief of Police for Toronto seek an order whereby the Youth Court releases the records to them so that those two parties can determine whether any other young persons who may have an interest in the records should be served with notice of John Doe’s application. They propose that any young person identified in the records as a victim, suspect and “even witnesses who provide information to the police in order to protect themselves and society at large”, may have a privacy interest in the records and are therefore entitled to notice of the records Application. The Attorney General and Chief of Police argue that all young persons involved in any way in the investigation of the sexual assaults have heightened privacy rights which would allow the Youth Court to take an expansive view of who should be getting notice in a Part 6 (YCJA) application.
[4] Having considered the motion and the written submissions of counsel, I am denying the motion. Aside from being unprecedented, the request would mean that the Youth Court would, in effect, supplement the statutory scheme set out in the legislation, by creating an additional category of persons entitled to notice under sub-section 123(2). While I agree there may be jurisprudence that could potentially support a notion that there is a constitutional right for witnesses to get notice in records applications, there is no constitutional application before me. The majority in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 agreed that a constitutional right to privacy extends to information contained in many forms of third-party records. However, the parameters of this legal notion were not explored by the Court. The entire (brief) discussion took place in a fact situation involving a conflict between the privacy interests of sexual assault victims versus the right to make full answer and defence. In the present case the interest of justice involves a private, civil matter. The moving parties have provided me with no authority to suggest the O’Connor reasoning is applicable in this context.
[5] The privacy provisions in the YJCA are not necessarily coextensive. The publication of the identity of victims or witnesses in matters involving a youth prosecution is indeed one such protection interest (s. 111 YCJA). However, the John Doe application, in which this motion is brought, involves access specifically to the records of accused young persons dealt with under the Act. Applications for access to records of young persons charged or found guilty of offences are governed by a specific statutory regime with prescribed periods of access and with specific tests for access. There is no mention of notice to witnesses or other young persons that may ‘have an interest’ in the records, or in the procedure established in either section 119 or 123 of the Act. No notice is required for a s. 119 or section 120 application and the category of applicants is strictly controlled. Notice is required to the young person who is the subject of a records application under s. 123 of the YCJA, an application which can be made by any person after the expiry of the relevant time periods for access.
[6] A further consideration is that by employing expansive reasoning for the protection of witnesses, flowing from the identification protection provided by section 110, this could result in witnesses getting more notice of persons seeking access to records than the young persons who are the subject of the prosecution, as they are only entitled to notice of section 123 applications.
[7] When Parliament devised this scheme, consideration was given to the various categories of records that may exist and which ones are capable of being exempt from the general prohibition against access. Police records are a distinct category of documents within the scheme and there is a mechanism to gain access to them. Parliament would have known that police records almost always contain witness statements and other investigatory personal information. Yet, no special notice provisions are contained in the legislative scheme.
[8] If I ultimately grant access to the records requested in the main application, I am able, pursuant to the Court’s powers to dictate the use to which the records can be put (s. 123 records only), order that only police records with initialized witness identifiers may be accessed. If it becomes clear down the road that any party has a valid and substantial interest in knowing the identity of the witness for the purpose of the proper administration of justice, that party may return to the Youth Court.
[9] Alternatively, if there is a constitutionally protected privacy interest in the witness statements (not raised in this Court), it is conceivable that such an issue could be raised at the Rule 30 hearing, at which point the Superior Court could impose a notice requirement before hearing argument.
[10] I am sensitive to the fact that the philosophical basis for the procedure in Part 6 embraces the notion of diminished responsibility and the need for enhanced protection of all young people. Cohen, J., said in R. v. B.(Y.), 2014 ONCJ 390, at p. 35:
Before leaving this issue, I wish to note that the complainant’s age is also a significant factor in my analysis. The Youth Criminal Justice Act recognizes the heightened privacy interests of young people, and, at section 111 of the Act, restricts publication which might reveal the identity of young persons who are victims or witnesses. One reason for this provision is that young people are particularly vulnerable to intrusions into their privacy. In A.B. v. Bragg Communications Inc. 2012 SCC 46, [2012] S.C.J. No. 46 (SCC), Abella, J. makes the following observations, albeit in a different context:
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people's privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child.
[11] I agree with Justice Cohen’s analysis.
[12] However, the issue is not whether the privacy right of the witnesses exists at law, but whether (as I argue above) the legislation allows the Youth Court to effectively amend the legislation to include a new notice provision when section 115 records are sought.
[13] There is a further consideration which engages the test for access under section 123. When privacy rights are to be put in issue, there should be a consideration of the correct legal portal through which those rights are advanced. Notice to the witnesses in this application would effectively invite them to appear and make argument. The issue at the centre of the argument at this stage of the process is whether the John Doe applicants in the application for access have a valid and substantial interest in accessing the records, and that access is necessary for the proper administration of justice. Enhanced privacy rights of the youthful witnesses is not germane in any way to the question before the Court.
[14] However, as the law of disclosure develops, privacy interests and prejudice are now frequently taken into consideration in arguments involving materiality, relevance and possible admissibility of records.
[15] From a procedural point of view, a loose analogy can be drawn with the two-step process in child welfare law. The first part of the protection application involves the Court having to make a determination of whether or not the facts which bring the child in front of the Court would lead to a finding that the child is in need of protection. If so found, the Court then moves on to the disposition stage, where it is possible there are competing plans of care for the child(ren).
[16] Often, when children are removed from their parents and placed in foster care, the extended family moves in immediately with temporary and permanent plans in order to reduce the amount of time a child must stay in state care.
[17] It is not uncommon for grandparents, say, to seek party standing at the beginning of the application in order to protect their intention to be the ultimate caregivers. Were they to get standing, they would then be entitled to service of all documentation and to make representations as parties. This type of standing is different and more expansive than the type of standing they receive at a temporary care and custody hearing, which standing is limited to that particular hearing. Under section 79 of the Child, Youth and Family Services Act, potential planners are not automatically entitled to party status on the main application. In fact, only persons who have continuously cared for the child(ren) for the six months prior to the application are entitled to a limited “right to participate” status as outlined in the section. Any further participation is only with the leave of the Court.
[18] It should come as no surprise that party standing is mostly denied to grandparents and other family members at the beginning of the application, notwithstanding the fact that the child’s blood relatives may enjoy enhanced importance in the juggling of the various ‘best interest’ factors. Importantly, their interest in planning for the child(ren) is completely irrelevant to the question to be decided at the first stage – whether or not the child is in need of protection. However, at the disposition stage, particularly when a family member’s plan is not being advanced by any other party, then that family member is commonly made a party. The family member’s plan and evidence about it are completely relevant to the question at the second stage.
[19] For all said, I am dismissing the (sub)-motion of the Ministry of the Attorney General and the Chief of Police.
Dated: July 28, 2021
Justice B. Weagant