DATE : August 9, 2021 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

IN THE MATTER OF: AN APPLICATION BY THE OFFICE OF THE CHILDREN’S LAWYER PURSUANT TO SECTIONS 119 AND 123 OF THE YOUTH CRIMINAL JUSTICE ACT FOR ACCESS TO YOUTH RECORDS IN RELATION TO A MATTER PRESENTLY BEFORE THE SUPERIOR COURT IN TORONTO (Court File No. FS-19-12971)

REASONS FOR JUDGMENT

Duncan J.

[1] The Office of the Children’s Lawyer (OCL) brought an application for an Order pursuant to section 119 or 123 of the Youth Criminal Justice Act granting access to youth records coming under the protections of section 118 of the YCJA.

[2] The Respondent, now an adult, is a party to a divorce proceeding being held in the Family Court in Toronto. Parenting and decision making in respect to the child of the dissolving marriage are in issue.

[3] A judge of that Court had requested the intervention of the OCL pursuant to s 112 of the Courts of Justice Act. In gathering information for preparation of a report to the Court, the OCL became aware of a “significant finding” under the YCJA made against the Respondent.

[4] The Applicant OCL seeks access to the Youth records for the purpose of preparing its report. Specifically, it seeks access to court records (s 114 YCJA) and government records (s 116 YCJA), but not police records (s 115 YCJA). The Applicant states that its exclusive interest is in records that may contain information about the Respondent’s mental health that may reflect upon her ability to parent her child.

[5] The law is clear, and the parties agree, that despite the fact that the litigation is in the family court, it is this court sitting as a youth court that has exclusive jurisdiction to determine whether access to records should be granted: S.L v N.B, [2005] OJ No 1411 (CA).

[6] The YCJA emphasizes the privacy of youth and provides a scheme of strict control over access to youth records. It defines access periods that are applicable following the various types of dispositions that can be imposed by a youth court: S 119(2). The most serious offences and dispositions have the longest access periods, the maximum being five years. During the access period, applications are governed by section 119. An application made after the access period is governed by the stricter rule in section 123. While there is some controversy about it, I am firmly of the view that in this case the access period expired in 2019.

[7] Accordingly, section 123 governs this application. The applicable part reads:

123 (1) A youth justice court may, on application made by a person after the end of the [access period] order that the person be given access……

a) If the youth justice 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…in the interest of the proper administration of justice and

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

[8] The first step for a youth court making a determination under this section is to review the records in question. This is done by the judge alone, as privacy must be maintained: R v ZW 2016 ONCJ 490 para 28. The relevant records were subpoenaed and produced to me and I have conducted the private review required.

[9] I am mindful that the test for access is a stringent one, with emphasis on the necessity of permitting access: Re JD 2009 ONCJ 505, [2009] OJ No 6384 at para 39 (per Katarynych J.)

39. The test for applications brought after the expiry of the "access period" 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).

[10] I am also assisted by the non-exhaustive list of relevant considerations suggested by Justice O’Connell in Boyer v Huang 2017 ONCJ 272 at para 69 specifically in the context of access for the purposes of use in civil litigation. To summarize, these include: The identity of the applicant; The time since the access period has expired; the nexus of a record to an issue in the civil proceeding, the probative value of that record to that issue and whether access is necessary for the fair resolution of that issue; the young person’s level of expectation of privacy in respect of the record; the prejudice to the young person and prejudice to the scheme of strict control of records that access could cause.

[11] Having reviewed the records and having considered the specific provisions and the principles of the YCJA and the governing case law, it is my view that none of the records meet the test for the granting of access for the stated purpose. Little more can comfortably be said to support this conclusion without, at least to some degree, revealing the contents of the records.

[12] It suffices to say that almost all of the relevant factors individually favour refusing access and collectively the weight is heavily in favour of refusal. a. There is a high expectation of privacy in medical/mental health records and information – in fact I question whether sub paragraph c of section 123 is cleared in this case, though no argument was made on that point. b. The notion that women who have had mental health issues may for that reason alone be considered suspect as parents seems to me to create a risk that inappropriate harmful stereotypical reasoning may be applied. This underscores the need to insist that a real and substantial nexus to the issue being tried is identified and articulated before access is granted. c. In any event, while there were several psychiatric and psychological reports and assessments conducted, there was never any diagnosis of mental illness. Such psychological and therapeutic treatment as the Respondent received was largely directed towards issues of her childhood abuse and neglect and the like. d. None of the records speak directly to the Respondent’s ability to parent – except one which is highly positive. [1] Their probative value is less than minimal. On the other hand, the prejudice to the Respondent of the records coming into the hands of the adverse party both in the litigation and beyond (internet spread) could be substantial. e. All of the records are dated. The access period has long passed. f. If the records were disclosed in this case the stringent requirements for release of YCJA records would be greatly diluted and the privacy interest of youth in general would be substantially reduced.

[13] For these reasons the application was dismissed on July 29 2021.

Other Orders:

[14] In the course of this hearing it was revealed that there has already been reference made in pleadings and elsewhere in the civil proceedings to records that have been considered in this application. In view of my ruling, it follows that these references are unlawful. To correct this situation, at the joint suggestion of the parties to this application, I respectfully make the following additional Orders: a. Pursuant to section 118(1) of the YCJA, there shall be no future reference to the youth court findings, records, or dispositions in the matter presently before the Superior Court of Justice in Toronto (Court File No. FS-19-12971) or any subsequent family proceeding; b. On the basis of the prohibition against publishing reference to a youth record as set out in section 118(1) of the YCJA, any reference to the youth court findings, records, or dispositions that are presently before the Family Court in Court File No. FS-19-12971 in any pleadings, briefs, affidavits or other documents shall be immediately redacted and the documents refiled; c. Any family judge having knowledge of the youth court findings or dispositions should disabuse their mind of such knowledge or, preferably, be recused from adjudicating over any future contested proceedings, unless they are being asked to adjudicate on the specific issue relating procedurally to the reference to these youth court findings or dispositions in the Family Court, in which case the matter may be brought before a judge who already has knowledge of the youth court findings or dispositions and, d. In the event of a contested proceeding (i.e. motion, hearing, trial), no Pleadings, Orders or Endorsements making reference to the youth court findings or dispositions shall be included in the evidence before the Court (whether by trial record, exhibit, or other reference).

August 9 2021 B Duncan J. S McIntyre for the Applicant C Pilgrim for the Respondent

[1] In itself, this statement is relevant. But it was merely a conclusory statement and would have little probative value. Its singular admission might prejudice the opposing party in the family proceedings.