ONTARIO YOUTH COURT OF JUSTICE

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

CITATION: R. v. Browne, 2023 ONCJ 257

DATE: 2023 06 16

COURT FILE No.: Toronto 22-7004646

BETWEEN:

HIS MAJESTY THE KING

— AND —

MICHAEL BROWNE

Before Justice B. Jones

Heard on June 2, 2023

Application to Access Youth Records – YCJA s. 119(1)(q)

Reasons released on June 16, 2023

Counsel

S. Duffey............................................................................................... counsel for the Crown

D. Paton................................................................................................ counsel for M. Browne

S. Wilmot and K. Soles….............................................. counsel for Peel Regional Police

Reasons for Decision

Jones J.:

I. Introduction

[1] Michael Browne is charged with sexual assault on L.D., who was 17 years old at the time. The Crown elected to proceed by summary conviction. His trial date has not yet been set in the Ontario Court of Justice.

[2] Mr. Paton has brought an application pursuant to section 119(1)(q) of the Youth Criminal Justice Act (“YCJA”) seeking all youth records pertaining to the complainant’s outstanding criminal charges that stem from Peel Region. Mr. Paton submits having access to these youth records is required for his client to be able to make a full answer and defence at his trial. He submits they are likely relevant to both his credibility and motive for testifying.

[3] Since the records in question are youth records as defined in the YCJA, this application is before me as a Youth Court Judge under Part 6 and sections 13(1) and 14(1) of the YCJA. A two-step process is required in these circumstances. The first application I must determine is whether access to the records should be granted pursuant to YCJA section 119(1)(q). If the answer to that question is “yes”, given that Mr. Browne is charged with sexual assault, the matter may proceed to the second step, a third-party Mills application under the relevant provisions of the Criminal Code in adult criminal court.[^1]

[4] The Crown does not oppose the defence application at this stage. Ms. Duffey agrees the records are likely relevant. Access should be granted, at a minimum, to some of the basic information surrounding the outstanding charges. However, if any of the information contained in the youth records engages the biographical core of the young person’s life, the youth court should carefully scrutinize the request for access to the youth records at this initial gatekeeper stage. The right to make a full answer and defence must be balanced against the young person's dignity, privacy and equality interests.

[5] Counsel for the Peel Regional Police Force (“PRP”) submits that existing case law casts doubt on the ability of the PRP to provide access to these youth records because they relate to outstanding criminal charges. Mr. Soles seeks guidance from the court concerning the lawful disclosure obligations of the Crown and PRP.

[6] For the following reasons, I conclude that youth records pertaining to outstanding criminal charges against a Crown witness are disclosable to the defence under YCJA sections 119(1)(q) and 125(2). The disclosure will normally be confined to certain limited forms of information, as I will explain. If the defence seeks disclosure of any detailed or potentially highly sensitive information contained in the records, the youth justice court may order that notice be given to the young person and that they are given the opportunity to appear at the hearing and make submissions.

II. The Allegations and Notice of Application

[7] Mr. Browne and the complainant, L.D., are known to one another. L.D. alleges he was sexually assaulted by Mr. Browne between June 1 and July 8, 2022.

[8] The Crown and defence agree that the central issue at Mr. Browne’s trial will be the credibility and reliability of the witnesses called to testify.

[9] On May 12, 2023, the Applicant served the PRP with a subpoena, requesting the production of “any charges incurred by [L.D.]… specifically, charges that remain outstanding, resulted in findings of guilt, or were withdrawn or stayed by the Crown….”, including police synopses, occurrence reports, and officers’ notes.

[10] Mr. Paton’s notice of application states that he seeks “production of the specific charges and dates of the alleged offences, as contained in the information(s).” He relies upon YCJA section 119(1)(q).

[11] The notice of application also states that the Applicant “further seeks production of those police synopses, occurrence reports, and police officer’s notes from the investigative file in relation to these charges”. Mr. Paton asserts that these materials are required to effectively cross-examine L.D. regarding his character and credibility. Given that the charge is sexual assault, Mr. Paton agrees that these materials almost certainly engage the Criminal Code third-party records regime contained in sections 278.1-278.91, as they are “records” as defined in section 278.1: see also R. v Quesnelle, 2014 SCC 46, at para. 44.

III. Applicable Legislation

[12] There is no dispute that the records respecting the complainant’s outstanding criminal charges are “youth records”. Section 2 of the YCJA defines a record to include “any thing… 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.”

[13] Part 6 of the YCJA serves multiple purposes. One purpose is to protect the identity of a young person dealt with under the Act from being published. Section 110 states 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.” Section 111 further prohibits the publication of 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 a witness in connection with, an offence committed or alleged to have been committed by a young person.”

[14] The intention of these provisions is to ensure that children and young persons who become involved with the youth criminal justice system are not unduly stigmatized by that experience. In R. v. D.B., 2008 SCC 25, a majority of the Supreme Court held that the publication of a young person’s identity makes the young person “vulnerable to greater psychological and social stress”: see para. 87. The Supreme Court of Canada has additionally recognized the “inherent vulnerability of children” and the pressing need for courts to preserve their right to privacy: see A.B. v. Bragg Communications, 2012 SCC 46, at para. 17. In R. v. Jarvis, 2019 SCC 10, a unanimous Supreme Court noted that children are generally provided greater privacy rights than adults under Canadian law: see para. 86.

[15] Another purpose of Part 6 is to set strict rules on the collection, use and distribution of youth records. Section 114 of the YCJA authorizes courts to keep records of any case that comes before it. These may include pending charges or past charges already adjudicated. Section 115 of the YCJA permits a police force to keep records relating to “any offence alleged to have been committed by a young person”. All the records sought to be acquired by the defence for this application are police records in the possession of the PRP.

[16] The information charging L.D. before the youth court of justice in Brampton is, however, also a “court record” under section 114 of the YCJA. A copy of that information, as it was originally drafted and submitted to the court, is contained within the police records held by the PRP.

[17] Access to youth records may only be granted pursuant to an applicable provision of the YCJA. Section 118 of the YCJA states:

Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, 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.

[18] Part 6 of the YCJA thus has provisions designed to protect the identity of young persons who are charged with criminal offences, and provisions designed to limit the access of youth records. These provisions work in tandem to protect the privacy rights of young persons who interact with the criminal justice system. But they are not absolute. They contain exceptions.

[19] Youth records may be accessed by certain persons or members of a class of persons who are included in section 119(1). Those persons “shall” be given access to court records (section 114), and “may” be given access to police records (section 115). Mr. Paton relies upon section 119(1)(q), which permits “an accused or his or her counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer and defence.”

[20] The ability to access a youth record runs from “the date a record is created until the end of the applicable period” set out in section 119(2).[^2] This is the “period of access.” The length of time of the access period varies depending on the disposition of the charges. It may last for as little as 60 days (for example, if the charges are withdrawn)[^3], to five years from the end of the youth sentence if the Crown proceeded by indictment.[^4]

[21] This point bears repeating. The statute is clear. The confusion that permeates the existing case law, which I will address, seems to stem from the fact that there is no provision in section 119(2) that specifically creates a “period of access” for a record relating to a pending charge. In that regard, I adopt the following passage from Ms. Duffey’s written materials which I endorse as an entirely correct description of the access period provisions contained in section 119(2):

It is understandable that Parliament did not include outstanding charges within the defined access periods set in s. 119(2). Sections 119(2)(a-h) set out defined access periods depending on the end date that charges are disposed of. While charges are outstanding, that access period is indeterminate and undefinable. Moreover, to include a section that records of outstanding charges may be provided while they are outstanding would be redundant; an outstanding charge contemplates a future disposition. The access period will necessarily end after the disposition of the charge as set out in sections 119(2)(a)-(h).[^5]

[22] At a hearing to access youth records brought under section 119, no provision of the YCJA grants the young person whose privacy interests are at stake standing. They do not have the automatic right to make submissions about the impact granting access might have on their privacy interests. These applications are therefore often granted without the young person appearing. I will say more about the concept of standing at these hearings later in this judgment.

[23] Once the applicable access period has expired, access to the youth record may be sought under section 123. That section requires the applicant to demonstrate that they have a “valid and substantial interest in the record” and it is “necessary for access to be given to the record or part in the interests of the proper administration of justice”. The test establishes a higher burden than the test contemplated for an application brought under section 119. The party seeking access must justify why it is “necessary” for youth records otherwise deemed to have been rendered inaccessible by Parliament to be re-opened.

[24] Of particular importance to this application, YCJA section 125(2) grants the Attorney General (or an agent of the Attorney General, such as Crown counsel) the discretion to release information in a youth record kept under section 114 or section 115 relating to a witness in a criminal proceeding. Section 125(2)(b) specifically authorizes the release of youth records to “an accused in a proceeding, if the record is in respect of a witness in the proceeding, information that identifies the witness as a young person who has been dealt with under this Act.” That section is intended to permit the Crown to fulfill its disclosure obligations under the constitution established by R. v. Stinchcombe, 1991 CanLII 45 (SCC), and its progeny, and applies to both pending and disposed of youth charges. Should the records relate to prior charges that fall outside the applicable access period, it would instead remain open to the Crown (or the defence) to seek to obtain those records under YCJA section 123.

IV. Relevance of Youth Records Relating To Outstanding Criminal Charges

[25] Before addressing some of the confusion that has arisen out of the existing authorities in this area of the law, I will review why access to the types of youth records that are the focus of this application is potentially of fundamental importance to ensure the fair trial rights of the accused are protected.

[26] In many criminal trials, as in this case, the credibility of Crown witnesses is a central issue. The common law has long recognized the right of an accused person to challenge a witness by demonstrating the witness’ bad character. Past or ongoing involvement with the criminal justice system may provide a legitimate basis for cross-examination: see Titus v. R., 1983 CanLII 49 (SCC). This may prove essential to the accused person’s constitutionally protected right to make a full answer and defence: see R. v. Lyttle, 2004 SCC 5.

[27] In R. v. Pascal, 2020 ONCA 287, the Ontario Court of Appeal held an ordinary witness, unlike the accused, may be cross-examined on outstanding charges and the conduct underlying those charges: see para. 121. While the mere fact that a witness has been charged with an offence does not necessarily impair their credibility, the cross-examination is always relevant as it may demonstrate that the witness “has a possible motivation to seek favour with the prosecution”: see para. 110. The Court concluded that a witness’ criminal record and outstanding charges are “obviously relevant” to the credibility of the witness and thus form first-party disclosure when they are in the possession of the investigating police force: see para. 128.

[28] Cross-examination on the conduct underlying the charges may, as with any allegation of prior discreditable conduct, call into question the character of the witness, which is a relevant factor in assessing the credibility and reliability of the witness’ testimony: see Hunter c. R., 2022 QCCA 805, at para. 60; R. v. John, 2017 ONCA 622, at para. 55. The answers provided by the witness are subject to the collateral fact rule and may not be the subject of contradictory evidence: John at para. 56. A trial judge has the discretion to limit this area of cross-examination, especially where it merely serves to badger or harass the witness and the answers simply consist of blanket denials: John para. 60. An accused person is entitled to a fair trial, not an endless one: R. v. Samaniego, 2022 SCC 9, at para. 56. This area of cross-examination should be scrutinized and even more tightly controlled when the witness remains a child or young person, as its probative value is likely to be marginal and its potential to cause psychological or emotional distress to the witness greatly amplified as compared to an adult witness.

[29] Yet it remains lawful and generally permissible for defence counsel to cross-examine a Crown witness about any alleged prior criminal conduct, including conduct that occurred when the witness was a young person: see Morris v. The Queen, 1978 CanLII 168 (Supreme Court of Canada) decided under the Juvenile Delinquents Act, R.S.C. 1970, c. J.-3; R. v. Strain, 1994 CanLII 7547, (Ont. S.C.J.), at para. 20, decided under the Young Offenders Act. The weight associated with prior offending behaviour that occurred as a young person will be for the trier of fact to decide. Courts should consider the nature of the offending behaviour, the age of the witness at the time of the acts, and the time that has passed since the behaviour occurred: see R. v. Upton, 2008 NSSC 338, at para. 23.

[30] In R. v. Hammerstrom, 2018 BCCA 269, the British Columbia Court of Appeal held that cross-examination on a witness’ prior youth findings of guilt was lawfully permissible to undermine the witness’ credibility. The Court held that section 82 of the YCJA expressly incorporates section 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which permits cross-examination on a witness’ prior convictions (or findings of guilt in youth court.) Before such cross-examination may be permitted, however, counsel must be prepared to demonstrate to the court that they have lawfully accessed those records beforehand pursuant to the applicable provisions contained in Part 6 of the YCJA: see para. 56; see also R. v. Gordon, 2022 ONCA 799, at para. 80.

[31] While Hammerstrom was concerned with prior findings of guilt in youth court, cross-examination on outstanding youth criminal charges also has probative value. The rule in Pascal that the prior findings of guilt of a witness and/or any outstanding charges generally constitutes part of the Crown’s first-party disclosure obligations applies equally to youth records as it does to adult criminal records. Where the Crown is aware of outstanding youth criminal charges relating to a witness, it must notify the defence that the charges exist and in which jurisdiction.[^6]

[32] Indeed, in R. v. Ali, 2020 ONSC 4410, Justice Dawson of the Superior Court of Justice held that in some circumstances, it is not only basic information about the existence of the outstanding charges themselves that forms part of the Crown’s first-party disclosure obligations. Rather, the investigative file associated with outstanding criminal charges against a Crown witness may also constitute first party-disclosure: see para. 46. The Crown witness in question was a police officer who had recently been alleged to have abused his powers and falsified his notes to cover up that misconduct. The records were therefore “obviously relevant.” Justice Dawson explained that having access to these materials may assist counsel in making decisions about how to conduct a defence, and how to structure their cross-examination of the Crown witness, including “formulating what questions to ask him”: see para. 51. He ordered the Crown to disclose the investigative file as first-party disclosure: see para. 62.

[33] Given the statutory provisions of the YCJA, there are important differences that arise for both the Crown and defence where the sought after records are youth records. After the initial notification to the defence has occurred about the existence of the outstanding charges, the Crown is vested with the discretion to disclose a witness’ youth records to the defence under YCJA section 125(2). Before the exercise of that discretion will be considered, defence counsel is obligated to produce a sworn affidavit “to the effect that access to the record is necessary to make a full answer and defence”. That can be served upon the Crown’s office. If the Crown takes the position that the privacy interests of the witness outweigh any possible value associated with the cross-examination on the youth records, an application should be brought before a youth court judge under section 119(1)(q). Even where the Crown agrees broadly with the defence position, if the Crown is of the view that judicial oversight should be sought to ensure the privacy interests of the young person are respected and considered, a formal hearing should be convened before a youth court judge.

[34] In this case, the youth records are not in the possession or control of the TPS or the prosecuting Crown’s office. Ms. Duffey merely being aware of the youth records in another jurisdiction does not amount to possession or control: see Pascal at para. 124. I do not find the materials constitute first-party disclosure accordingly.

[35] An application was required to be served on the record holder, the Crown’s office, and the youth justice court. One was properly brought by Mr. Paton, well in advance of any trial date, ensuring that this motion could be determined promptly and allow the parties to have a better estimate of the time requirements for both the subsequent Mills application and the trial proper.

[36] I will make two further observations. First, granting access to a list of the charges the witness is facing and a basic synopsis or occurrence report describing the circumstances surrounding the allegations should normally be sufficient for the requirements of YCJA section 119(1)(q) to be met. Defence counsel will need to clearly articulate why access to the more detailed information contained in the investigative file relating to outstanding youth charges should be granted.

[37] Whether or not access to the investigative file should be granted engages a more complex balancing exercise of competing interests than would typically be required with respect to outstanding adult charges. Young persons, as previously discussed, have enhanced privacy rights that must be jealously guarded by youth justice courts. Young persons are commonly alleged to have committed offences with other young persons, and against other young persons and children. Investigations into these cases may very likely touch upon the young person’s family situation, school environment, and friendships or relationships with their peers. The potential exists not only to unduly impact upon the privacy rights of the young person who has been charged, but the privacy rights of various other children and young persons who may be named in the investigative file. As previously noted, YCJA section 111 prohibits the publication of the identity or any information that could identify any child or young person who is alleged to be a victim of, or a witness to, an offence committed by a young person.

[38] It will be incumbent upon the Crown, when faced with a request for the contents of the investigative file relating to outstanding youth charges, to strictly vet the materials to ensure these other privacy interests are protected. Where a dispute exists between the parties about whether any redacted materials should be disclosed, a youth justice court will review the contested materials and decide on the appropriate process necessary to decide the matter.

[39] Second, if the Crown becomes aware that the outstanding charges of the witness are subsequently disposed of in youth court, it should notify counsel of the nature of that disposition. Both Crown and defence counsel must determine the length of the access period that now attaches to that disposition according to YCJA section 119(2). If the access period expires prior to the commencement of the upcoming trial for the accused, counsel must bring an application under YCJA section 123 for continued access to the record and to make any lawful use of its contents.

[40] This is vital. Even if lawful access to the witness’ youth records was initially obtained when the charges remained outstanding, that does not mean either party has perpetual lawful access to the records. The access period will only be defined after the disposition in youth court. There is an ethical and legal obligation on counsel who have obtained access to a youth record to remain vigilant of the access period that attaches to that record, and to take the necessary steps to ensure that ongoing access to that record remains lawful.

[41] Counsel may not put the contents of a youth record to the witness in cross-examination under any circumstances without being able to demonstrate they continue to have lawful access to that record. In R. v. J.J., 2022 SCC 28, the Supreme Court held that adducing a record is not limited to circumstances where it is formally entered as an exhibit. It includes “references to the content of a record made in defence submissions or the examination and cross-examination of witnesses”: see paras. 76-81. The Supreme Court’s decision was made in the context of sexual assault cases and the sections of the Criminal Code intended to protect the dignity and privacy rights of complainants in their personal records. Yet the reasoning is equally applicable to the lawful use of youth records. It bears repeating that the fundamental purpose of the applicable provisions of Part 6 of the YCJA is to safeguard the enhanced privacy rights of young persons who interact with the criminal justice system.

V. Existing Authorities and Stare Decisis

[42] Counsel brought to my attention several existing authorities which appear to state that the YCJA does not permit the disclosure of a witness’ outstanding youth criminal charges. I review these prior decisions to explain why I respectfully disagree, and find they are not binding upon me.

[43] In R. v. O.Y., 2020 ONCJ 466, the accused was an adult charged with two counts of assault and sexual assault against his former partner. Their child, V.K., when she was a young person, was a complainant in a sexual assault case against another young person. No charges were ever laid. The defence sought access to the uncharged records of V.K. pursuant to YCJA section 119(1)(q) and in the alternative, 123. The records were sought to challenge the credibility of V.K. as a witness.

[44] The Youth Justice Court dismissed the application on the basis that there was no right of access in the YCJA to youth records where no charges were ever laid following a police investigation: see para. 18. That was the issue before the court. In obiter, the court also remarked that “s. 119(2) does not provide for access to records in cases where charges have been laid and are outstanding”: see para. 15. The basis for this conclusion is unclear: see DBCFS v. LS.K., 2022 ONSC 6176, at para. 67. O.Y. did not seek to appeal, nor have reviewed, the youth court judge’s decision.

[45] When the case came before the Superior Court of Justice for trial, the accused sought to relitigate the issue by bringing a third-party records application. Justice Trimble held that he had no jurisdiction to review the decision of the youth justice court. A youth justice court has exclusive jurisdiction to decide youth records applications: see R. v. O.Y., 2021 ONSC 1105, 2021 CarswellOnt 2716, at paras. 34-37.

[46] This decision should not be interpreted as “upholding” the youth court judge’s decision. It was rather the Superior Court of Justice concluding it did not have jurisdiction to hear what would have been tantamount to an interlocutory appeal in a criminal matter, which is not generally available: see para. 37; R. v. Awashish, 2018 SCC 45, at para. 10.

[47] In R. v. Robinson, 2021 ONSC 5438, the accused adult parties were charged with human trafficking and sexual assault. The Crown notified counsel for Mr. Robinson that there was an occurrence report relating to the complainant, D., when she was a young person, in Peel region. D. was never charged. After reviewing the previous authorities regarding “no charge” youth record applications, the Superior Court denied the application and held the YCJA does not grant a right of access to these records.

[48] In obiter, the Superior Court also held that “[t]here is no provision for access in relation to outstanding charges”: see para. 19. That issue was not before the court, and there is no analysis as to why that conclusion was drawn. It is not clear from the reported decision whether or not counsel even made argument on the matter. Furthermore, the Superior Court was not constituted as a youth justice court.

[49] In S.L. v. N.B. (2005), 2005 CanLII 11391 (ON CA), the Ontario Court of Appeal held that the inherent jurisdiction of the Superior Court does not permit it to adjudicate applications for access to youth records, as Parliament has vested that authority exclusively within the provisions of the YCJA. Only a youth justice court can adjudicate applications for youth records. In Ontario, section 13(1) of the YCJA combined with section 38(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, makes the Ontario Court of Justice a youth justice court: see para. 38. Sections 13(2) and (3) of the YCJA allow the Superior Court of Justice to be deemed a youth justice court only when a young person is charged with a criminal offence and elects to be tried in the Superior Court of Justice. This remains a relatively rare occurrence.

[50] At para. 54 of S.L. and N.B., the Ontario Court of Appeal wrote about the importance of youth court judges deciding applications for youth records:

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.

[51] Two family court decisions in Ontario have come to the opposite conclusion regarding the ability to access outstanding youth criminal charges under section 119 of the YCJA. In Native Child and Family Services of Toronto v. K.G., 2019 ONCJ 457, Justice O’Connell heard an application from the Office of the Children’s Lawyer to strike a number of paragraphs in a child protection worker’s affidavit. The worker had contained information that referenced information obtained from youth court proceedings, and no previous order has been obtained under the YCJA for the release of the records. Some of the charges referenced in the affidavit regarding the child at the centre of the application were still pending before the youth justice court: see paras. 55 and 60.

[52] Justice O’Connell held that Native Child and Family Services of Toronto was entitled to access information in the youth records – including the outstanding charges – by virtue of section 119(1)(n) of the YCJA. While Justice O’Connell was not constituted as a youth justice court at the time she made this ruling, her analysis is detailed and by implication she determined that outstanding charges are disclosable (albeit in the child protection context). In that sense, the issue that is before me was before Her Honour as well.

[53] Finally, in DBCFS v. LS.K., 2022 ONSC 6176, Justice Finlayson of the Superior Court of Justice addressed the provisions of Part 6 of the YCJA in the context of a child protection hearing. While not constituted as a youth justice court, Justice Finlayson engaged in an extremely thorough and comprehensive review of these provisions in an effort to assist the Ontario Youth Court of Justice with applications for youth records in family court proceedings.

[54] In particular, the child at the centre of the hearing had criminal charges pending before the Ontario Youth Court of Justice. His Honour specifically commented on whether outstanding charges of a young person may be accessed pursuant to the applicable provisions of section 119(1) of the YCJA. After reviewing the existing case law and statutory provisions, Justice Finlayson concluded that “access under section 119 begins when the record is created”: see para. 73 (my emphasis added.)

[55] None of these prior decisions were made by youth justice courts, with the exception of O.Y. (OCJ), which made the remark about outstanding charges in obiter.

[56] Since that case was decided, Robinson and DBCFS have been released from the Superior Court of Justice. Regarding these decisions, I acknowledge that provincial courts are always subject to the supervisory authority of the Superior Court: see R. v. R.S., 2019 ONCA 906, at para. 73. I am faced with two decisions of the Superior Court, at odds with one another on this point of law, with neither one constituted as a youth justice court at the time the rulings were made.

[57] Given Justice Doherty’s comments in S.L. v. N.B. about the expertise of youth justice courts in these matters, and the exclusive jurisdiction granted by Parliament to youth justice courts, I do not find that either of these decisions binds me. However, Justice Finlayson’s decision is the more recent decision, and while his conclusion was ultimately obiter, the reasoning behind his analysis and conclusion is comprehensive and persuasive. To the extent I should always be guided by the decisions of the Superior Court of Justice, in these circumstances, I am to follow the most recent decision of that court, in keeping with the Supreme Court of Canada’s decision in R. v. Sullivan, 2022 SCC 19, on stare decisis: see para. 79.

VI. Standing at the YCJA s. 119 Hearing

[58] There is no requirement that L.D. be provided with notice of the youth records application under section 119(1) of the YCJA. At the same time, there is nothing in the YCJA that prohibits requiring notice to be provided to a young person whose privacy rights will inevitably be affected by a decision made to release their youth records.

[59] By contrast, when a youth records application is brought for records that are now beyond the scope of the applicable access period, at least five days’ notice is required: see YCJA section 123(4). The young person may appear and be given a “reasonable opportunity to be heard.”

[60] In Toronto Community Housing Corporation v. R., 2018 ONCJ 100, the Ontario Youth Court of Justice held that notice may be required for a records application brought under section 119(1): see paras. 15-24. The authority to do so is found in the inherent jurisdiction of the youth justice court to control its process: see R. v. Cunningham, 2010 SCC 10, at paras. 18-19; Samaniego, supra, at paras. 128-130.

[61] I agree with Ms. Duffey that many applications for youth records brought under section 119(1) are relatively routine and therefore notice should not normally be required. In those cases, the court can apply the general principles respecting the importance of preserving the young person’s privacy rights against the basis for the application when deciding whether to allow access to the youth records.

[62] However, there will be circumstances when the youth court should consider the appropriateness of providing notice and granting standing to the affected young person. For example, where the youth records may reveal information that strikes at the young person’s biographical core of information – such as aspects of their family life, mental or physical health concerns, intimate relationships, educational background, or access to social services – it may be desirable to hear from the young person to better appreciate the potential impact of disclosure on the young person.

[63] There are other remedies available to the youth court as well, including limiting access to only a portion of the sought-after records or redacting information from them.

[64] This will be an exercise of judicial discretion. Notice should be provided to the young person when granting access to youth records has:

(1) a particularly high likelihood of impacting the young person’s dignity, privacy or equality rights;

(2) the youth court is of the view that the young person may be able to provide a unique or distinctive perspective on the application; and

(3) hearing that perspective is necessary for the court to properly decide the matter.

[65] If the young person responds to the service of notice, the subsequent date for the hearing may need to be adjourned for the young person to be given the opportunity to retain counsel or access free legal advice.[^7]

VII. Conclusion

[66] Access to a youth record under section 119 of the YCJA may be granted as soon as the record is created. Outstanding criminal charges of a young person are included in the types of records available. One legitimate basis for such an application is where an accused young person, or his counsel, files an affidavit that access to the records is required to make a full answer and defence: YCJA section 119(1)(q).

[67] The Crown’s office may use its discretion to release information about outstanding youth criminal charges of a witness pursuant to YCJA section 125(2)(b). It has a constitutional duty to notify defence counsel if it becomes aware of such charges. If the charges arise out of the same jurisdiction as the investigating police force, this information constitutes first-party disclosure. If the prosecuting Crown’s office becomes aware of outstanding youth charges in another jurisdiction, it is only required to notify the accused that they are aware of the charges’ existence and the jurisdiction in question.

[68] When an application is brought before a youth justice court to access these records under section 119(1), the young person whose privacy interests are affected does not normally have standing. There is no need to notify the young person of the hearing. However, the youth justice court may issue an order for notice to be served on the young person and grant the young person standing to appear and make submissions. This is an exercise of the youth court’s discretion.

[69] The youth records application in this case is granted, on consent. L.D. already has counsel who declined to appear at this stage of the proceedings and does not contest this initial application. This is because all the parties agree a Mills hearing is required as the accused is charged with sexual assault. He has informed the court he will make submissions on his client’s privacy interests at that time.

Released: June 16, 2023

Signed: Justice Brock Jones

[^1]: If the trial is to be held in the Superior Court of Justice, a similar process is followed, whereby the Ontario Youth Court of Justice will first decide if access should be granted to the youth records as that court has exclusive jurisdiction over youth justice matters. If access is granted, they are provided under seal to the Superior Court for the subsequent Mills application: see R. v. O.Y., 2021 ONSC 1105, at para. 33.

[^2]: My emphasis added.

[^3]: YCJA s. 119(2)(c)

[^4]: YCJA s. 119(2)(h)

[^5]: Crown’s written submissions on the application at para. 21.

[^6]: I am not aware of any formal, public MAG policy in Ontario on this point. However, the Federal Prosecution Service Deskbook, in section 3.14, stipulates that Federal prosecutors are obligated to disclose “relevant information relating to any outstanding criminal charges against the witness”. It does not distinguish between adult and youth criminal charges.

[^7]: In Ontario, Justice for Children and Youth, a legal aid clinic, provides free legal advice and representation to young people under the age of 18 and in some cases adults up to the age of 25.