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Identity of offender not to be published.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Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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- Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: July 18, 2023
Toronto
Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended;
AND IN THE MATTER OF an Application for variation under the Youth Criminal Justice Act regarding Young Person 2, and the 7 other Young Persons in this matter.
BETWEEN:
Young Person 2 et. al. Applicants
His Majesty the King Respondent
and
Canadian Broadcasting Corporation , CTV News, a Division of Bell Media Inc., Global News, a Division of Corus Television Limited Partnership, The Globe and Mail Inc., Toronto Star Newspapers Limited, et. al. Respondents
Before Justice Sheilagh O’Connell
Heard on March 1, 2023; Ruling released on July 18, 2023
Counsel: Jordana H. Goldlist……………………………………for the Applicant Young Person 2 Sarah De Filippis................................ counsel for Respondent, His Majesty the King Daisy Bygrave ……………………………… counsel for Respondent, Young Person 1 Joanne Prince…………………..……………counsel for Respondent, Young Person 3 Nadia Chaabane………………..……………counsel for Respondent, Young Person 4 Karen Lau Po Hung…………………………counsel for Respondent, Young Person 5 Anne Marie Morphew………….……………counsel for Respondent, Young Person 6 Ayderus Alawi ……………………….………counsel for Respondent, Young Person 7 Leo Alder……………………..…………… counsel for Respondent, Young Person 8
O’CONNELL, J.:
Introduction:
[1] The Applicant, Young Person Number 2, on behalf of all of the young persons in this case, has brought an application seeking to vary paragraph 84 (4) of my order dated January 19, 2023, Canadian Broadcasting Corporation v. Ontario, 2023 ONCJ 32.
[2] Specifically, she seeks to amend paragraph 84 of the order to include wording that would “prevent the media from disseminating the names and/or any other identifying information about the young persons charged, not only through publication to the general public but also to individuals privately or through social media”.
[3] The Applicant also served a summons to witness on a Global News journalist to give oral evidence at the hearing regarding the events that led to this application.
[4] The Crown supports (or does not oppose) the application, but for different legal grounds than the Applicant.
[5] The Respondents, members of the media, oppose the application as well as the summons to witness served on the journalist within the application.
[6] For brief oral reasons at the outset of this hearing, I declined to hear oral evidence from the journalist in question. I was satisfied that there was a sufficient evidentiary record before me to consider the application.
Brief Overview :
[7] On December 18, 2022, eight young persons as defined by the Youth Criminal Justice Act (“ YCJA ” or the “Act”) attended their first court appearance on charges of second-degree murder in relation to the death of Mr. Kenneth Lee.
[8] On that date, a publication ban pursuant to section 517 of the Criminal Code was imposed, in addition to the automatic statutory publication bans protecting young persons’ privacy as set out under sections 110 , 111 , and 129 of the YCJA.
[9] On December 30, 2022, several media organizations brought an application seeking access to the unredacted criminal court records in the youth court file involving the eight young persons arrested.
[10] The Crown and the young persons opposed the application. The contested hearing took place before me on January 13, 2023.
[11] On January 19, 2023, for written reasons delivered [^1], I ordered that the media be granted access to a number of records in the youth court file, subject to further redactions in my order and in accordance with sections 110 and 129, the statutory publication bans under the Youth Criminal Justice Act.
[12] Pursuant to paragraph 84 (4) of the court order, I ordered that the records that I granted media access to “are to be maintained in conditions of strict confidentiality and shall not be reproduced, disclosed or published in any way that contravenes the publication ban under the Act ”.
The Facebook Messages :
[13] On January 5, 2023, two weeks prior to my January 19th ruling, the grandmother of Young Person Number 2 received a message from a reporter sent to her Facebook account. However, the grandmother did not notice the message until January 28, 2023. The message was from a reporter with Global News, one of the respondents in this application.
[14] The grandmother did not respond to the message but instead forwarded it to Ms Goldlist, Young Person Number 2’s lawyer.
[15] The Facebook message from the reporter was attached in its entirety as an exhibit to the Affidavit of a legal associate in Ms Goldlist’s law firm. The affidavit and all of the exhibits attached were admitted on consent as evidence in these proceedings.
[16] The relevant portions of the Facebook message read as follows:
“Hi [ name of grandmother ]- so sorry for the very random message but my name is [ name of reporter ] and I’m a journalist for Global News covering the case of the 8 girls accused of 2 nd degree murder in Toronto and believe you may know one of the Accused, [ complete identifying legal name of Young Person 2 ] ?
There are a lot of rumours and disinformation on this case flying around and I’d really like to get to the bottom of what actually happened here…Is it possible for me to give you a quick call? Everything you say will be completely off the record. I will also not be naming [ legal name of Young Person 2 ] in line with the law…
Thanks for your time – and please forgive me if I’ve contacted the wrong person and you don’t know her!” [^2]
[17] It is not disputed that this message was sent on January 5, 2023, before my ruling in this case, but after the section 517 bail publication ban under the Criminal Code and the automatic statutory bans protecting the identity of young persons under the YCJA were already in effect.
[18] Once she became aware of the messages, counsel Ms Goldlist contacted the reporter by writing to her at a LinkedIn social media account [^3]. She requested that the reporter immediately stop contacting random individuals through social media that share the last name of Young Person 2 to see if they know her.
[19] Ms Goldlist stated that by contacting people on social media who share her client’s last name the reporter was doing the following:
“You are doing so without knowing if they are related to my client and in your messages you refer to my client by her first and last name and identify what she was charged with. As such, you are violating the spirit of the publication ban because the people you contact may not know my client’s name and charges before receiving your unsolicited messages.”
[20] In her response to Ms Goldlist’s communication, the reporter first admitted to contacting people with the same last name as Young Person 2 on Facebook and inquiring about the young person, including the young person’s grandmother, but stated that she did so before the bail hearings had started and that she had not contacted anyone since and will not do so in the future.
[21] It is unclear how many people the reporter had contacted in this manner.
[22] When Ms Goldlist pointed out to the reporter that the publication bans were in place on December 18, 2022 at the first court appearance, less than 24 hours after the arrests, the reporter then stated that the people she contacted “were not just random people” but people that she had “believed were related to the young person”. The reporter then stated,
“But you’re completely right, I did not consider that naming the accused in a private message would be in contempt of the publication ban—I am new to Canada and am still trying to get my head around the differences in legalities here.”
[23] When Ms Goldlist pointed out that the reporter’s own messages stated that she was sending “random” messages to individuals on Facebook and that she did not know if they were related to her client, the reporter responded that this is “Because some people can have the exact same name and not be the intended person.” The reporter reiterated that she was trying to contact a specific person.
[24] The complete LinkedIn messages exchanged between Ms Goldlist and the Global News reporter were also attached as exhibits to the supporting Affidavit for the application and admitted on consent as evidence in these proceedings.
[25] At the return of the bail hearings, Ms Goldlist brought the above events to the attention of Justice Maria Sirivar, the judge conducting the bail hearings in this matter, as well as alerting the Crown. Counsel for the Young Person alleged that the reporter had breached the statutory publication bans as well as the January 19th Order and sought a remedy. The Crown did not take further steps regarding the alleged breaches, pursuant to section 138 of YCJA, but did not oppose the commencement of this application seeking an amendment to the January 19th Order.
[26] There is no evidence to suggest that the Young Person’s name and associated criminal charges were subsequently disseminated or communicated to the broader general public on social media following the reporter’s initial Facebook posts to individuals sharing the last name of Young Person 2.
[27] The reporter stated, as noted above, that once she became aware of the publication ban she stopped contacting people through social media.
The Applicant Young Person’s Position :
[28] It is the Applicant’s position that the reporter’s actions directly contravened sections 110 and 129 of the YCJA as well as my order dated January 19, 2023.
[29] The Applicant’s counsel submits that by randomly contacting individuals or members of the public through social media without knowing their connection to her client and providing her client’s full legal name and the criminal charges against her, the reporter is violating the YCJA publication bans and the spirit of the Act.
[30] The Applicant relies on section 129 of the Act and proposes that paragraph 84 (4) of my order should be amended to make it clear to the media and others that disclosing the name and any identifying information about the young persons charges through social media, even in private messages, and especially in private messages to random people, should be strictly prohibited.
The Crown’s Position :
[31] The Crown agrees with the Applicant’s position that other reporters should not be doing what the Global News Reporter did in this case.
[32] The Crown submits that the indiscriminate disclosure of the young person’s full name and criminal charges to random individuals or members of the public on social media, even if they are messaged privately, risks running afoul of the section 110 statutory publication ban under the YCJA.
[33] However, the Crown does not agree that the reporter breached the provisions of my order because the name and criminal charges disclosed by the reporter on social media were not obtained from the unredacted youth records disclosed pursuant to the January 19th order. The reporter obtained Young Person 2’s name at the first court appearance following the young persons’ arrest, well before my order.
[34] Further, section 129 of the Act , which the Applicant largely relies upon, deals with the prohibition on subsequent disclosure of information that has been obtained in youth records under the access regime set out under sections 118 to 129 of Part 6. The Crown submits that section 110 is applicable to the circumstances here.
[35] Notwithstanding the above difference in legal positions, the Crown does suggest that paragraph 184 (4) of the January 19th order could be amended to read that no information from the youth records can be released without further authorization from the Court.
[36] The Crown further suggests that going forward, to avoid this happening again, the Publication Ban that is read out by the judges or clerks of the court at the beginning of every court hearing in youth matters should be amended to include words as follows: “When you are sending out information, including the name of the young person, through social media, you risk violating the statutory publication bans of the Youth Criminal Justice Act.”
The Respondents’ Position :
[37] It is the Respondents’ position that the court does not have the jurisdiction to consider this application.
[38] The Respondents submit that the Applicant has not brought a proper application to address the concerns that she has raised regarding the reporter’s actions. The January 19th court order related to an application for access to youth records under section 119 of the YCJA. The order granted access to the records in the youth court file, subject to removing all identifying information. The only restriction on publication was respect to the youth records to which the media was granted access under section 129 of the Act.
[39] The Applicant is now bringing a fresh application regarding an alleged previous violation of the publication ban, not the disclosure of youth records. She seeks separate and distinct relief to prohibit the communication of information obtained from a source other than the youth court file. The court does not have the jurisdiction to entertain this given that the application has been wrongly constituted as a variation application of the January 19th Order.
[40] Even if the application is properly before the Court, which the Respondents submit it is not, the court does not have jurisdiction to grant the order requested. As a court of statutory jurisdiction, there is no jurisdiction in the YCJA that gives the Court the authority to grant the additional publication ban or relief requested.
[41] Section 110 of the YCJA does not confer jurisdiction on the court to impose a publication ban. The Act creates a mandatory statutory publication ban that exists without any judicial directive. According to the Respondents, the application before the court seeks to impose restrictions that go far beyond the publication ban under section 110 of the YCJA and it would be unconstitutional.
[42] The Respondents submit that the current publication bans under the YCJA do not prohibit members of the media from reaching out privately to individuals directly on a social media platform such a Facebook. Although counsel for the Respondent acknowledges the public policy concerns that this may create, these concerns should be addressed by legislative reform not judicial directive.
[43] The Respondents submit that the court can not re-write the legislation, nor can the Court provide an “advisory opinion” regarding the publication ban where the relief sought is not properly before the Court.
The Law and Governing Principles :
[44] This application is governed by the Youth Criminal Justice Act and specifically, Part 6 of the Act, which deals with privacy, restrictions on publication, records and information regarding young persons involved with the criminal justice system.
[45] It is well accepted that the YCJA establishes a separate and distinct regime for young persons involved in criminal court proceedings in Canada. A primary goal of the YCJA is to limit the stigmatization that attaches to young persons involved in youth court proceedings.
[46] In the Supreme Court of Canada’s decision R. v. D.B., 2008 SCC 25 [^4], Justice Rosalie Abella, speaking for the majority, held that “[y]oung people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.” 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”. [par. 41]
[47] The Supreme Court of Canada went on to state that “the principle that young people are entitled to a presumption of diminished moral culpability throughout any proceedings against them, including during sentencing” is a principle of fundamental justice under section 7 of the Charter. [par. 95]
[48] This principle is also incorporated into the text of the YCJA, including under section 3 which is the Act’s Declaration of Principle and Policy for Canada with respect to young persons. [^5]
[49] Section 3 reads as follows:
Declaration of Principle
Policy for Canada with respect to young persons
3 (1) The following principles apply in this Act :
(a) the youth criminal justice system is intended to protect the public by
(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,
(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and
(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should
(i) reinforce respect for societal values,
(ii) encourage the repair of harm done to victims and the community,
(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and
(d) special considerations apply in respect of proceedings against young persons and, in particular,
(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,
(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,
(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and
(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.
Act to be liberally construed
(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). 2012, c. 1, s. 168 [Emphasis in italics added.]
The Privacy Provisions under Part 6 of the YCJA
[50] Part 6 of the YCJA protects the privacy of young persons dealt with under the Act . Under Part 6, publication of information that would identify a young person involved in the youth criminal justice system, as well as access to their youth records, are strictly limited.
[51] Part 6 of the YCJA serves at least two purposes. It protects young persons from the harms of publication. It also regulates the collection and subsequent use of certain kinds of records kept or created for the purposes of the Act. [^6]
[52] Regarding publication, the publication ban set out at section 110 of the Act reads as follows:
Protection of Privacy of Young Persons
Identity of offender not to be published
110 (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 .
Limitation
(2) Subsection (1) does not apply
(a) in a case where the information relates to a young person who has received an adult sentence; or
(b) [Repealed, 2019, c. 25, s. 379]
(c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
Exception
(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.
Ex parte application for leave to publish
(4) A youth justice court judge shall, on the ex parte application of a peace officer, make an order permitting any person to publish information that identifies a young person as having committed or allegedly committed an indictable offence, if the judge is satisfied that
(a) there is reason to believe that the young person is a danger to others; and
(b) publication of the information is necessary to assist in apprehending the young person.
Order ceases to have effect
(5) An order made under subsection (4) ceases to have effect five days after it is made.
Application for leave to publish
(6) The youth justice court may, on the application of a young person referred to in subsection (1), make an order permitting the young person to publish information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, if the court is satisfied that the publication would not be contrary to the young person’s best interests or the public interest. 2019, c. 25, s. 379
[53] The word ‘publication’ is defined under 2(1) of the Act , under “Definitions” as follows:
“publication means the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means. ( publication )”
[54] Counsel for the Applicant also relies on section 129 in Part 6 of the Act . This section deals with the prohibition on disclosure of information that has been obtained from youth records under the access regime set out under sections 118 to 129 of Part 6. Although also intended to protect privacy, it is related to the regulation and subsequent use of records obtained under these sections, as noted by its sub-title.
[55] Section 129 of the Act reads as follows:
No subsequent disclosure
129 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.
[56] The consequences of failing to comply with both sections 110 and 129 of the YCJA are set out in section 138 (1) of the Act. The relevant portions read as follows:
Offences
138 (1) Every person who contravenes subsection 110(1) (identity of offender not to be published),…or section 129 (no subsequent disclosure) of this Act , or subsection 38(1) (identity not to be published)…,
(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.
Provincial court judge has absolute jurisdiction on indictment
(2) The jurisdiction of a provincial court judge to try an adult charged with an offence under paragraph (1)(a) is absolute and does not depend on the consent of the accused.
[57] The protection of a young person’s privacy interests under the Act is fundamental to achieving the purposes of the Act, which include, among other purposes that are set out in the Act’s Preamble, our society’s shared responsibility “to address the developmental challenges and the needs of young persons and to guide them into adulthood.”
[58] Publication is widely understood to be harmful to young persons in the youth criminal justice system. As Justice Abella held at R. v. D.B., publication makes the young person vulnerable to greater psychological and social stress. It renders the sentence “significantly more severe”. [par. 87]
[59] In R. v. C. (R.), 2005 SCC 61 the Supreme Court also emphasized the importance of protecting the privacy interests of young persons involved in the youth criminal justice system:
“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]
[60] The protection of a young person’s privacy is also rooted in the principle of diminished moral blameworthiness or culpability enshrined in the Act ’s Declaration of Principle. In Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, Justice Marion Cohen states the following:
“ The concern to avoid labeling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act . However, it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance. [par. 41]
Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment , the court stated that privacy is worthy of constitutional protection because it is “grounded in man's physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (par. 17). These considerations apply equally if not more strongly in the case of young persons. [26] . Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter. [par. 42]
[61] As Justice Alex Finlayson notes in DBCFS v. L.S.K., 2022 ONSC 6176 [^7], the fact that young persons are inherently vulnerable and have “heightened privacy rights” is not just a concept that is the sole domain of the youth court. These principles are protected across different areas of law.
[62] For example, in A.B. v. Bragg Communications Inc., 2012 SCC 46, a case in which a teenage girl had been cyberbullied, the Supreme Court stated at paragraph 17:
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. As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. D.B. , 2008 SCC 25, [2008] 2 S.C.R. 3 , at paras. 41 , 61 and 84-87; R. v. Sharpe , 2001 SCC 2, [2001] 1 S.C.R. 45 , at paras. 170-74 .
[63] As noted by the Court above, there are also international protections for young persons’ privacy. In accordance with Canada’s international legal obligations, the Preamble of the YCJA states that “Canada is a party to the United Nations’ Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms. ”
[64] The UN Convention on the Rights of the Child recognizes the “physical and mental immaturity” of young people. 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.”
Application of the Law and Governing Principles to the Facts of this Case :
[65] For the reasons that follow, the court finds that it does have jurisdiction to entertain this application and to consider whether the reporter’s actions in this case contravened the statutory publication bans under the YCJA.
[66] The court finds that the reporter did not breach paragraph 84 (4) of my Order dated January 19, 2023, nor should she be found in contempt of the court. It is not disputed that the reporter obtained the Young Person’s name from another source well before my January 19th Order and not from the redacted youth records subsequently released.
[67] The court also finds that the reporter did not intentionally breach the section 110 publication ban. The reporter states that she stopped messaging individuals through social media once she became aware of the publication ban. Fortunately, there is no evidence that the reporter’s messages to various random people on Facebook led to the young person’s name becoming known or identified to the general public.
[68] However, the court is very concerned by the reporter’s actions in this case. Although the application before me has been framed as a variation application, I agree with the Respondents’ submission that it could have been more properly framed as a fresh application seeking direction from the court regarding whether the reporter in question violated the statutory publication bans under the Act .
[69] This application is about whether there was a breach of the statutory publication ban, not access to and disclosure of youth records. I intend to deal with it in this manner. [^8]
[70] I also agree with both the Crown and the Respondents that the applicable statutory provision is the section 110 publication ban, not section 129 of the Act .
[71] In this case, based on the evidence filed by the Young Person’s counsel, admitted on consent by the parties, it is not disputed that the reporter in question randomly contacted individuals on Facebook who had the same last name of the Young Person to see if any of these individuals were related to the Young Person and were willing to talk to the reporter.
[72] It is also not disputed that the reporter disclosed the full legal name of the Young Person and the criminal charges against her in a Facebook post without knowing whether the person that she was messaging was related to the Young Person. [^9]
[73] In my view, indiscriminately contacting individuals on social media without knowing their connection to a young person and posting the young person’s full legal name and criminal charges on the social media page contravenes the section 110 statutory publication ban under the Youth Criminal Justice Act. At a minimum, it runs the very real risk of contravening the legislation.
[74] Unlike a private telephone call, a permanent record is created on social media, and that information can be easily and very quickly disseminated to the general public through numerous social media platforms, resulting in the breach of the young person’s constitutionally protected right to privacy and the statutory publication bans under the YCJA.
[75] I agree with the Crown that if the journalist is not certain of who the recipient of this information will be, as is the case before me, then he or she can not be satisfied that the information will not become known to the general public.
[76] I agree with the Respondents that the current publication bans under the YCJA do not explicitly prohibit members of the media from reaching out privately to individuals directly on a social media platform such a Facebook. However, it is clear from the Act’s Preamble, its Declaration of Principle and section 110 itself that the statutory publication ban must be interpreted to prohibit the indiscriminate disclosure of a young person’s name or any information that would identify the young person in the manner in which it was done in this case.
[77] The word “publication” under section 110 is defined under section 2(1) of the YCJA to mean, “the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means.”
[78] The indiscriminate communication of the young person’s name on Facebook or other social media platforms, particularly to people who may not know the young person can, and in many cases will, make the information known or accessible to the general public.
[79] The internet, digital technology and social media have brought fundamental change in the way in which we communicate, store and retrieve information. The capacity to transmit information through social media to the public, even if it is communicated privately, can be instantaneous. The damage done is irreversible.
[80] The Respondents argues that the court can not re-write the legislation, nor can the Court provide an “advisory opinion” regarding the publication ban. Although counsel acknowledges the public policy concerns that the reporter’s actions in this case may create, he argues that these concerns should be addressed by legislative reform not judicial directive.
[81] A court, however, is permitted to interpret a statute. As the Supreme Court of Canada recently held in R. v. Breault, 2023 SCC 9, citing its earlier decision in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, every statutory interpretation exercise involves reading the words of a provision “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act, and the intention of Parliament.” [^10]
[82] Section 3(2) of the YCJA provides that the Act is to be liberally construed so as to ensure that young persons are dealt with in accordance with the Principle of Declaration in section 3(1).
[83] In Statutory Interpretation , 3rd ed. (Toronto: Irwin Law, 2016), at p. 59, Ruth Sullivan confirms that "ordinary meaning' . . . is the meaning that spontaneously comes to the mind of a competent language user upon reading the text. . . . In the absence of a reason to reject it, it should be adopted by the court, because the general public will rely upon the ordinary meaning to inform their behaviour " (emphasis added). [^11]
[84] The YCJA’s preamble, Declaration of Principle and the Privacy Provisions of Part 6 are designed to ensure that a young person’s heightened privacy rights are protected and that a young person is protected from the “long term negative consequences of their youthful offending behaviour and is in keeping with the rehabilitative intentions of the Act ”. See Children’s Aid Society of Toronto v. A.C., 2016 ONCJ 750 at paragraph 35 , per Cohen, J.
[85] A plain reading of section 110 within the context of the Act infers that Parliament could not have intended that the reporter’s actions in this case would be permissible under the current publication ban.
[86] Journalists must be able to do important investigative work as thoroughly and as vigorously as possible. A free and unrestricted press is absolutely essential to the proper functioning of democracy. The open court principle is protected by the constitutional guarantee of freedom of expression. Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. [^12]
[87] However, when a journalist’s investigation involves a young person facing criminal charges, this work should not involve the careless dissemination of the young person’s full name and criminal charges on Facebook or other social media platforms without knowing the intended recipients of the information.
[88] In this case, which has attracted considerable media attention, eight teenage girls have been charged with second degree murder. They are presumed innocent. Their case is still at the early stage in these court proceedings.
[89] It is critical for the young persons in this case, as well as for the broader community, that the young persons’ right to a fair trial and right to privacy are protected.
Conclusion :
[90] For the above reasons, this Court makes the following Order, to ensure that the young persons’ privacy in this case is protected by the statutory publication ban under section 110 of the Act :
- When sending out information through social media regarding a young person involved in these proceedings under the YCJA, the name of the young person, or any other information that would identify the young person, should not be included.
[91] In my view, this order strikes the appropriate balance between the young persons’ constitutionally protected right to privacy and the media’s constitutionally protected right to investigate and report freely on court proceedings.
[92] I thank counsel for their excellent advocacy and very helpful submissions.
July 18, 2023 Justice Sheilagh O’Connell
Notes
[^1]: See Canadian Broadcasting Corporation v. Ontario, 2023 ONCJ 32. [^2]: I have removed all of the identifying personal information from the Facebook message above. [^3]: According to the affidavit evidence, attempts were first made to contact the reporter and/or Global News Legal department by email but this information could be located on its website. [^4]: See R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, par. 41. [^5]: The principle is also referenced elsewhere in the Act , see for example section 72(1) , which sets out the test for an adult sentence under the YCJA. [^6]: See: DBCFS v. L.S.K., 2022 ONSC 6176, at paragraph 29. [^7]: See DBCFS v. L.S.K., 2022 ONSC 6176, at paragraphs 24 to 28 of this decision. [^8]: Although the Ontario Court of Justice is a statutory court, it has the right to control its court process. See: R. v. Cunningham, 2010 SCC 10; Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43; R. v. Fercan Developments Inc., 2016 ONCA 269, at par. 51-52. [^9]: In the Facebook post admitted, the reporter states, “Thanks for your time – and please forgive me if I’ve contacted the wrong person and you don’t know her!” after fully identifying the name of the young person and the criminal charges against her. [^10]: R. v. Breault, 2023 SCC 9, at paragraphs 25 to 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at paragraph 21. [^11]: M.R.R. v. J.M., 2017 ONSC 2655 at paragraph 69, per Fryer, J. [^12]: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26. Khuja v. Times Newspapers Limited, [2017] UKSC 49, [2019] A.C. 161, at para. 16, citing Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1326‑39, per Cory J.).