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 Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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 Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

ONTARIO COURT OF JUSTICE

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended;

AND IN THE MATTER OF an Application under section 119 of the Youth Criminal Justice Act for access to records of Young Person 1, Young Person 2, Young Person 3, Young Person 4, Young Person 5, Young Person 6, Young Person 7, Young Person 8

CITATION: Canadian Broadcasting Corporation v. Ontario, 2023 ONCJ 32

DATE: January 19, 2023

Toronto

BETWEEN:

Canadian Broadcasting Corporation, CTV News, The New York Times, Global News, The Globe and Mail, The Toronto Star, The Associated Press, Alison Chiasson and Andrew Brennan

Applicants

and

His Majesty the King, Young Person 1, Young Person 2, Young Person 3, Young Person 4, Young Person 5, Young Person 6 Young Person 7 and Young Person 8

Respondents

Before Justice Sheilagh O’Connell

Heard on January 13, 2023, Ruling Released on January 19, 2023

Ryder Gilliland…………………………………………………………for the Applicants

Sarah De Filippis...................................... counsel for Respondent, His Majesty the King

Daisy Bygrave ………………………………… counsel for Respondent, Young Person 1

Jordana Goldlist…………………………………counsel for Respondent, Young Person 2

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 applicants, a group of Canadian and American media companies, seek access to the unredacted youth criminal court records in the youth court file involving eight young persons arrested and charged with second degree murder.

[2] The Crown opposes the application.

[3] The young persons charged also oppose the application.

Background:

[4] On December 21, 2022, the Toronto Police Service announced at a press conference that it had arrested eight teenage girls between the ages of 13 and 16 for second degree murder. The eight girls were alleged to have assaulted and stabbed a homeless man in the early morning hours of December 18, 2022.

[5] The incident has understandably shocked the residents of Toronto and the broader community. The case has attracted widespread public interest and media attention.

[6] All of the young persons charged were detained and on December 19, 2022, they made their first appearances in bail court. Bail hearings were adjourned to December 29, 2022 to be scheduled for the young persons and their respective counsel. The media was present on December 19, 2022.

[7] On December 23, 2022, the Crown and defence counsel for Young Person #1 secured an earlier date for a bail hearing on December 28th and the criminal information was brought forward to that day.

[8] The bail hearing on December 28th for Young Person#1 was conducted before Justice M. Sirivar. A section 517 publication ban was imposed at the beginning of the hearing, which is an order banning the publication of information arising during a bail hearing until an accused had been discharged or the trial has ended.

[9] No members of the media attended the hearing on December 28, 2022, either in person or remotely as they may not have been aware that it was proceeding. Justice Sirivar reserved her judgment regarding bail to December 29, 2022, the return of the bail hearing for the other seven young persons.

[10] On December 29, 2022, many members of the media attended at the court appearance for the seven other young persons and learned that a bail hearing for the first young person had been conducted the day before, with the judgment reserved to that morning. Justice Sirivar released Young Person #1 on bail with a detailed release order, with reasons for judgment to be read into the court record on January 11, 2023.

[11] According to the Affidavit of CBC journalist Ms Alison Chiasson in support of this application, members of the media attempted to obtain the court file from the Court Registry in order to determine which of the young persons was granted bail on December 28th. CBC in particular was interested in knowing the age of the girl in question so that it could report on this fact. Ms Chiasson also gave brief oral evidence at this hearing and explained that it was important to review the court record to fact-check information such as the terms of the bail release order, and the criminal charges on the information.

[12] The media was advised by the Court Registry that a “judicial directive” had been issued not to provide any details about the case to anyone. They were subsequently advised that an application on notice to the Crown was required in order to obtain access to the youth court records.

[13] The seven other young persons remained in custody on December 29, 2022, and are awaiting their bail hearings, which have now been scheduled in late January and February.

The Applicants’ Position:

[14] The applicants submit that they have been denied access to all of the records in the criminal court file in this matter, even the court file number, and that this denial of access is contrary to the constitutionally protected open court principle. It undermines the administration of justice by frustrating the public’s right to understand and scrutinize the courts’ handling of the charges.

[15] The applicants further submit that this secrecy and “sealing” of the court record is entirely unwarranted as the privacy of the young persons is protected by the publication ban on any information that would identify them under the Youth Criminal Justice Act (“YCJA” or the “Act”).

[16] The applicants, all reputable media organizations, assert that they are aware of the mandatory section 110 publication ban under the YCJA preventing the publication of anything that would identify the young persons in this case, as well as the section 517 publication ban regarding any evidence or information given at a bail hearing, including the reasons given by the presiding judge in support or denial of bail.

[17] According to the applicants, members of the media routinely get access to the unredacted criminal court records of young persons and know that they are subject to the YCJA publication ban. The publication protects the privacy of young persons under the Act, but it should not undermine the open court principle, as established by the Supreme Court of Canada in the Dagenais/Mentuck[^1] test. Openness applies throughout the youth court process regardless of the stage of proceedings.

[18] The applicants also take the position that this application should not have been necessary, and it is not required under the YCJA. All that is required under the Act is a request by members of the media to the presiding judge to access the court record, which should have been granted. A formal application frustrates the timely and efficient access to information to which the media is entitled.

The Crown’s Position:

[19] The Crown acknowledges that the applicants, all established reputable media organizations, have a valid interest in the court records that they are seeking. However, the Crown submits that granting the applicants access to the youth court records at this time is not desirable in the interests of justice, given the significant and enhanced privacy interest for the young persons involved, as well as the vital importance to the community and the young persons’ interest in protecting the young persons’ right to a fair trial at this very early stage in the court proceedings.

[20] The Crown submits that notwithstanding the good intentions and reputation of all of the applicants in this case, if the media is granted access to the court records and inadvertently or mistakenly disseminates private information to others, then the damage will be done and it will be irreversible, given the speed in which information passes in this digital age. Here, eight young teenagers are charged with a very serious offence and awaiting trial. If found guilty, the young persons will continue to have a privacy interest in their youth court records under the YCJA, however while they are presumed innocent, their privacy interest in these records is even more heightened.

[21] The Crown further submits that all of the reasons for which the media is rightly valued in our democracy, including its ability to report upon court proceedings and to publicly scrutinize judicial processes, are severely circumscribed at this stage of the proceedings in this case, given the additional section 517 publication ban, which prohibits the publication of any evidence or information from the bail hearing, including exhibits such as videos, until the end of trial. While the media’s interest in accessing these records may increase at a later stage in these proceedings, it cannot now be said that access to the records at this time is crucial to the media’s ability to fulfil its important functions.

[22] Although the Crown agrees that the legal principles enunciated in the ‘Dagenais-Mentuck’ test are clearly relevant to this application, the principles enunciated in those cases do not replace the statutory test for access to youth records under Part 6 of the YCJA. Rather, these principles must be considered in the analysis that a judge is required to do under section 119(1)(s) of the Act.

[23] With respect to the New York Times only, the Crown submits that there is another reason why this application should be dismissed. The Crown assert that a foreign media outlet, in this case American, which accesses a youth court record in Canada and disseminates it elsewhere, even inadvertently, is immune from prosecution given that the offence for breaching a publication ban under section 138 of the YCJA will have been committed extraterritorially. Without this offence, there is no incentive for people to abide by the limits imposed under the Act.

[24] Finally, the Crown disagrees with the applicant’s position that access to unredacted youth records by members of the media can simply be made “on request” to the court without a written application. Access to youth records, as set out in the comprehensive code under Part 6 of the Act, should not be confused with publication, which is subject to the publication ban under other provisions of the Act. Access to youth records requires a motion or application before the youth court justice with notice to the Crown.

The Position of the Defence:

[25] Counsel for the young persons in this case adopt the submissions of the Crown. In addition, Ms Goldlist, Ms Chaabane and Ms Morphew made brief additional submissions and argument which will be addressed later in these reasons. Ms Goldlist also conducted a brief and focused cross-examination of CBC journalist Alison Chiasson, who filed an affidavit in support of this application.

The Law and Governing Principles:

[26] The YCJA contains a comprehensive statutory scheme which governs the retention and access to youth records. Youth records protected by the YCJA are presumptively inaccessible. There is a strong presumption against access.

[27] 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 as having been dealt with under the Act, as well as access to records created or kept for the purposes of the Act, are strictly limited.

[28] It is now well-settled law that the regime under Part 6 of the Act is the sole route through which access to a youth records can be gained. There is no separate scheme for access to youth records, even when sought for civil litigation or private prosecution or by the media. See S.L. v. N.B., 2005 CanLII 11391; 2005 CarswellOnt. 1417; [2005] O.J. No. 1411, 12 C.P.C. (6th) 34; 196 O.A.C. 320 (Ont. C.A.), at paragraph 55 of that decision.

[29] In S.L. v. N.B., supra, above, Justice Doherty, writing on behalf of the Ontario Court of Appeal, stated the following at paragraph 54 of the decision:

“The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records. The language of section 118 and the comprehensiveness of the scheme itself demonstrates that Parliament intended that access to the records should be gained only through the Act… Parliament in clear and unambiguous terms has placed the responsibility for determining access to records on the shoulders of the youth justice court judges.… 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 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.”

[30] The rationale for the protection of youth records is understandable. A primary goal of the YCJA is to limit the stigmatization that attaches to a young person who is being investigated by the police and is being accused of committing a criminal offence or has committed a criminal offence.

[31] This goal is consistent with the presumption of diminished moral blameworthiness and culpability that the Supreme Court of Canada identified as a fundamental principle of youth criminal justice in R. v. B. (D.).[^2] Speaking for a unanimous court, Justice Abella states the following at paragraph of that decision:

“….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. This presumption is the principle at issue here and it is a presumption that has resulted in the entire youth sentencing scheme, with its unique approach to punishment.” [par. 41]

[32] Further, in the Supreme Court of Canada’s decision in R. v. C. (R.), 2005 SCC 61, Justice Fish states the following in considering the rights of a young person charged:

“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]

[33] As well, in accordance with Canada’s international obligations, the YCJA affords young people special guarantees in recognition of their diminished moral blameworthiness or culpability. (See s. 3 of the Act). The UN Convention on the Rights of the Child recognizes the “physical and mental immaturity” of young people and their need for “special safeguards in care, including legal protection”. 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.”

[34] In Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, Justice Marion Cohen explained the importance of privacy in the specific context of young persons who are participants in the justice system:

“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.

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” (para. 17). These considerations apply equally if not more strongly in the case of young persons. 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.”

The Meaning of ‘Youth Records’:

[35] Section 2 of the YCJA defines “record” as including:

“ anything containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act.”

[36] There are three categories of records that are set out at sections 114 to 116 under Part 6 of the Act.

[37] Section 114 are the records kept by the youth justice court and can include the court file number, the names and dates of birth of the youth, the charges against the young person (the charging information), the bail or release orders, findings of guilt, the sentence, probation orders, transcripts, any recordings, exhibits, including bail exhibits, pre-sentence reports and exhibits. The exhibits can also be mental health and cognitive assessments, such as “section 34 assessments” under the Act.

[38] Part 115 deals with records that may be kept by the police, including documentation of extra judicial measures, occurrence reports, police notes of an investigation into an alleged offence, fingerprints or photographs of the young person, audio and video taped statements, and records kept by the RCMP.

[39] Part 116 refers to records that may be kept by government departments, including the Attorney General and the Provincial and Federal Crowns.

[40] It is not disputed that the youth court records being sought in this case fall under section 114.

The Statutory Framework: [Sections 118](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html), [119](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) and [123](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html):

[41] Access to youth records is governed by sections 118, 119, and 123 of the Act.

[42] Section 118(1) is central to the statutory scheme controlling access to youth records and reads as follows:

“Except as authorized or required by this Act, no person shall be given access to a record kept under section 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.”

[43] As Justice Doherty states S.L. v. N.B., supra, “Section 118 announces an unequivocal and unqualified prohibition against access to records kept by the court, police, or crown except as required or authorized under the Act. This prohibition is made all the more emphatic by section 138 which makes it an offense to violate section 118.[^3]” [Emphasis added.]

[44] Justice Doherty further states the following in S.L. v. N.B. regarding the Part 6 framework under the YCJA:

“…Those provisions demonstrate beyond peradventure Parliament’s intention to maintain tight control over access to records pertaining to young offender proceedings whether those records are made and kept by the court, the Crown, or the police. Generally speaking, access to those records is limited to circumstances where the efficient operation of the young offender system, or some other valid public interest is sufficiently strong to override the benefits of maintaining the privacy of young persons who have come into conflict with the law…”

[45] Even when access is permitted, Parliament seeks to protect young person’s privacy interests by limiting dissemination of the information in the records after access is granted. Section 129 of the Act reads that 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. See L. (S.) v. B. (N.), supra at paragraph 43.

[46] Section 119 (1) does permit access to section 114 (youth court records) to specific categories or classes of persons for limited and prescribed time periods known as “access periods”. For example, the young person’s counsel, parents, the Crown, a peace officer, a judge, or a provincial director, are all specified classes of persons that are presumptively entitled to access to records kept under section 114 so long as the request is made within the access period defined under section 119(2) of the Act.

[47] The media is not a class of persons listed as presumptively entitled to access to section 114 records under sections 119(1) (a) to (r) during the prescribed time periods.

[48] However, section 119 (1) (s) provides that:

(s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is

(i) desirable in the public interest for research or statistical purposes, or

(ii) desirable in the interest of the proper administration of justice.

[49] A “valid interest” in a record is an interest that is legitimate and relevant to the purpose for which the record is sought. To establish a “valid interest”, the applicants must articulate a factual and legal nexus between the material issues to be litigated in the eviction proceeding and the records being sought. See Boyer v Doe, 2017 ONCJ 272 at paragraphs 57 to 59; Toronto Community Housing Corporation v. R., 2018 ONCJ 492 at paragraph 65, per Justice Alex Finlayson.

[50] It is not disputed that the applicants, as members of the media, have “a valid interest” in the record and as such, fall within the category or class of persons under section 19(1) (s) of the Act.

[51] Courts have consistently held that the media has a valid interest in youth court records and proceedings. See: R. v. M.M., 2017 NSPC 12 at para. 36; R. v. A.Y.D., 2011 ABQB 590 at para. 30; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 at para. 7; D.C.F., Re; Southam Inc., Re, 1986 CanLII 6425 (AB PC); R. v. S. (R.D.) 1995 CanLII 16073 (NS SC).

[52] However, that does not end the analysis. The application judge must still determine whether access to the record by the media is still “desirable in the interest of the proper administration of justice” under section 119 (1) (s) (ii) of the Act, as set out above.

The Specific Records in Question in this Application:

[53] The Crown has advised that at this very early stage in the proceedings, the following records are contained in the criminal court file in this case:

a. The criminal information (the charging information setting out the criminal charges against each of the young persons). The information includes the names and dates of birth of each of the young persons charged;

b. Notices to Parents for each of the young persons charged, as required under the Act;

c. Designations of counsel for the some of the young persons;

d. Exhibits entered at the first bail hearing for Young Person #1, including a synopsis of the allegations, two videos, and two surety declarations;

e. One release order of Justice M. Sirivar, dated December 29, 2022, for the young person released on bail. (Young Person #1).

Analysis:

[54] As noted earlier, it is not disputed that the applicants in this case, as members of the media, have a valid interest in the youth court records under section 119 (1) (s) of the Act.[^4]

[55] What is disputed is whether it is “desirable in the interest of the proper administration of justice” that the applicants be granted such access, under section 119(1) (s) (ii) of the Act.

[56] The Act provides no express guidance on what a court should consider when undertaking a section 119(1) (s) (ii) analysis. However, when determining whether to grant the media access to youth records under this section, there are a number of legal principles that inform this analysis.

[57] The applicants rely on the Dagenais-Mentuck test and argue that it is the only legal test to be applied in determining whether to grant or refuse access under section 119 (2) (ii) as this determination is left to the discretion of the court.

[58] The Dagenais-Mentuck test provides that any discretionary judicial order which limits the openness of court proceedings and the ability of the press to freely report on judicial proceedings should only be ordered when:

a. Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b. The salutary effects of the publication ban outweighs the deleterious effects on the rights and interests of the parties and the public, including the effects in the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.[^5]

[59] The applicants further argue that the media is presumed to have access to the youth court file under this legal test unless the Crown can demonstrate a serious risk that outweighs the deleterious effects of denying access.

[60] The applicants agree that the young persons in this case have a significant privacy interest in the youth court records at issue, but they do not agree that those privacy rights are infringed in any way by granting their request to access the court file, given that the privacy of the young persons is protected by the publication bans under the Act. They are prohibited from publishing anything that they obtain in the youth court file that could identify the young persons in this case.

[61] Although I agree that the principles enunciated in the Dagenais-Mentuck test are relevant to the section 119(1)(s) (ii) analysis in this case, I do not agree that it is “the only test” to be applied, as argued by the applicants.

[62] In youth criminal justice proceedings, the Dagenais-Mentuck test must be considered “through the lens of the applicable youth criminal justice legislation” and the principles enshrined in that legislation that protect the privacy of youth. See: R. v. M.M., 2017 NSPC 12 at paragraphs 33 and 34; R. v. G.D.S., 2007 NSCA 94 at paragraphs 38; R. v. A.Y.D., 2011 ABQB 590, at paragraph 23.

[63] As Justice J.J. Gill stated in R. v. A.Y.D., supra, above, in a similar application by the media for youth court records:

“The YCJA enacts a distinct framework for dealing with proceedings involving young persons. This framework must be interpreted in light of the Declaration of Principles set out in s. 3, which expressly emphasizes the young persons’ right to privacy. Accordingly, the Dagenais-Mentuck test must be considered in the unique context of youth criminal justice, taking into account the protections afforded to young persons.” [para. 23]

[64] I agree with the Crown that the prohibition on access to youth court records under the YCJA are not solely the result of an act of “judicial discretion” as set out in the Dagenais-Mentuck test but is the result of the comprehensive statutory regime set out under Part 6 of the legislation. It is well-settled law that Part 6 of the Act is the complete and comprehensive code for access to youth records, as the Ontario Court of Appeal stated in S.L. v. N.B., 2005 CanLII 11391 at paragraph 54 of that decision.

[65] I do not agree with the applicants that the media is presumed to have access to the youth court file unless the Crown can demonstrate otherwise. This may be the onus under the Dagenais-Mentuck test generally, but in the context of youth criminal justice, it is clear that the media is not a class of persons listed as presumptively entitled to access to youth records under the sections 119(1) (a) to (r) of the legislation.

[66] To succeed under section 119(1) (s), the onus is on the applicants seeking access to persuade the court that they have a “valid interest” in the records being sought and that access to the records is “desirable in the interest of the proper administration of justice” given the young persons’ protected privacy interests in the records. See Boyer v. Doe, ONCJ 272 at paragraph 55 of that decision.

[67] In this case, eight teenage girls have been charged with second degree murder. They are presumed innocent. Their case is at the very early stage in these court proceedings. The bail hearings have not yet been completed. The bail hearings are also subject to a section 517 publication ban until the end of trial.

[68] It is vitally important to the young persons in this case, as well as to the broader community, that the young persons’ right to a fair trial is protected.

[69] If found guilty, the young persons will continue to have a privacy interest in their youth court records under the YCJA, however, while they are presumed innocent, their privacy interest is even more heightened.

[70] I agree that it is also vitally important that the media must be able to report on these court proceedings and to publicly scrutinize the judicial process. They have a right to attend all court proceedings and to observe and report on the court process subject to the relevant publication bans.

[71] As Justice Marion Cohen stated in Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27, the open court principle, which permits the public to scrutinize the workings of the court, is a value of paramount significance in the Canadian democracy. The open court principle permits the public to understand and evaluate the functioning of a critical democratic institution. The media are the means by which the vast majority of Canadians “see the judicial process at work.”[^6]

[72] I also agree that all of the applicants in this case are established and reputable members of the media who are well aware of the legal prohibition on publishing the names of the young persons in this case or any information related to the young persons if it would identify them.

[73] However, if the media is granted complete and unredacted access to the entire youth court file at stage of the court process, which includes the names and dates of birth of all of the young persons involved, videos, surety declarations, including names and addresses of sureties and parents, there is a risk of inadvertent or accidental dissemination of any or all of this private information.

[74] If this occurs, then the damage will be irreversible and cause irreparable harm, both to the young persons’ constitutionally protected privacy rights and their rights to a fair trial.

[75] This risk is not speculative, but real, given the speed at which information travels in this digital age.

[76] Further, all of the evidence in this case to date, including the videos, is subject to the additional section 517 bail publication ban, which prohibits the publication of all evidence or information from the bail hearing until the end of trial. While the media’s interest in accessing the youth court file for these records may increase at a later stage in these proceedings, access to these records now will not be essential to the media’s ability to report upon the court proceedings given this additional publication ban.

[77] In considering all of the above, I find that it would not be desirable in the proper administration of justice to grant the applicants access to the entire unredacted youth court file at this stage in the proceedings, as they have requested.

[78] However, I will grant the media partial access to some redacted records in the youth court file and ensure that the media is aware of all future court dates. This will protect the heightened privacy interests of the young persons at this stage in the court proceedings, while allowing the media the ability to report on the court case to the public.

[79] Finally, I wish to comment on this application process. I agree there may have been some confusion at the outset of this case when members of the media first approached court administration to determine court hearing dates and to access the youth court file. There should be a protocol in place, which I will address in my order below.

[80] Respectfully, I do not agree with the applicants that a written application is not required to access youth records. Access to youth records, as set out in the comprehensive code under Part 6 of the Act, should not be confused with publication, which is subject to the publication bans under other provisions of the Act.

[81] Access to youth records requires a motion or application before the youth court justice with notice to the Crown. See: S.L. v. N.B., 2005 CanLII 11391 (Ont. C.A.) at paragraphs 51 and 52; R. v. M.M., 2017 NSPC 12 at paragraph 29; R. v. A.Y.D., 2011 ABQB 590; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 at paragraph 2; D.C.F., Re; Southam Inc., Re, 1986 CanLII 6425 (AB PC) at page 259.

[82] Further, although there is no express requirement that young persons be given notice of an application under section 119(1) (s) (ii) of the Act (unlike section 123), courts have also determined in some cases that the young persons affected by an application to access records have an interest in the proceeding and are also entitled to notice. See: Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 at para. 2; Toronto Community Housing Corporation v. R., 2018 ONCJ 100 at paragraphs 15 to 17; Boyer v. Doe, 2017 ONCJ 272 at paragraph 9.

[83] This is one such case.

Order:

[84] Accordingly, for the above reasons, I order that the following records in the youth court file be made available to the applicants in this case, subject to both the statutory publication bans set out under the Act and the further redactions that I have made below:

1. The applicants are granted access to the following records in the youth court files, subject to the redactions set out under paragraph 2 of this Order:

a. The court file number;

b. The age of each of the young persons charged;

c. Copies of the criminal informations (the charging informations), which include all of the criminal charges against the young persons;

d. The dates of all past and future court appearances for each young person in these proceedings;

e. All bail release orders including bail conditions, and terms and any other orders made by the youth criminal justice(s) in this matter.

2. The above records shall only be released once reviewed and redacted by the Crown of any information that may identify the young persons involved and include the following further order:

a. The names of each of the young persons shall be redacted and shall be identified as Young Person 1 (the young person released on bail), Young Person 2, Young Person 3, Young Person 4, Young Person 5, Young Person 6, Young Person 7, and Young Person 8. The year of birth for each young person shall be provided.

b. For greater clarification, the exhibits entered at the bail hearing(s) are not to be released at this time, but the applicants may renew their application for these exhibits following the expiry of the section 517 bail publication ban. This application can be sent to the court’s attention through the trial coordinator.

3. Regarding the dates of all future court proceedings, in addition to accessing this information in the redacted youth court file, the media may also request this information from the trial coordinator, including information regarding any changes or additions to the court dates scheduled, so that members of the media can attend these court proceedings.

4. The records 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.

5. The court further directs that any further applications in writing for access to the youth court file by the media be sent to the trial coordinator for the court’s attention.

[85] I thank counsel for their excellent submissions and the case law provided.

Released: January 19, 2023

Signed: Justice Sheilagh O’Connell

[^1]: Dagenais v. Canadian Broadcasting Corporation, 1994 CanLII 39 (SCC); R. v. Mentuck, 2001 SCC 76. [^2]: See R. v. B. (D.) 2008 CarswellOnt 2709, 2008 SCC 25, [2008] 2 S.C.R. 3, at paragraph 41. [^3]: S.L. v. N.B., supra, at paragraph 45. [^4]: See paragraph 50 of this decision and the caselaw referenced. [^5]: See R. v. Mentuck, 2001 SCC 76; [2001] 3 S.C.R.442 at paragraph 32. [^6]: See paragraphs 24, 25 and 29 of that decision.