WARNING

The court hearing this matter directs that the following notices 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

Court and Parties

DATE: August 6, 2024

ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

B E T W E E N :

A.B.

-and-

THE LAW SOCIETY OF ONTARIO

Reasons for Judgment

Duncan J.

1. This is an application brought by AB to vary or rescind a consent Order made by me on December 3 2019 granting the defendant Law Society access to AB’s youth court records. The LS concedes that I have jurisdiction to vary or rescind the Order but submits that I should not do so.

2. AB is a graduate of an Ontario law school. In November 2016 she applied for admission to the Law Society as a lawyer. In her application she disclosed a “conviction” under the Youth Criminal Justice Act (YCJA) for a serious offence – murder. This triggered referral of her case for a “good character” investigation. [^1]

3. In aid of that investigation the LSO applied for access to her Youth Court Records. AB, represented by counsel, consented to access being granted. On December 3 2019 I granted the Order on terms agreed to by counsel. The record access period expired 12 days later.

4. The good character hearing has not yet been held or set for hearing.

5. A brief history is as follows:

   • December 15 2014 – AB’s youth sentence completed
   • November 30 2016 – AB applies for admission to LSO – in answer to a misleading question (discussed below) she discloses Youth conviction for murder.
   • 2017 – 2000 investigation by LS investigator takes place
   • November 2019 – correspondence between parties with respect to an access Order – a memorandum of understanding is written dealing with how the records would be stored and who can access them
   • December 3 2019 – consent order for access to records presented to the Court and signed.
   • December 15 2019 – record access period 119 YCJA expires
   • November 27 2020 – Law Society refers application to LS Tribunal for a good character hearing. Various prehearing conferences, adjournments and proceedings take place thereafter.
   • May 11 2021 – AB withdraws her application for admission
   • August 29 2022 – AB applies to reinstate her application – LS consents – initial application is revived – no new application is filed.
   • July 2023 – AB, with new counsel, advises that she is withdrawing her consent to LSO having access to her Youth Records
   • August 4 2023 – AB’s motion heard before panel of tribunal with respect to withdrawing consent.
   • August 25 2023 – Reasons of tribunal released holding that jurisdiction over the issue lies exclusively with youth court
   • February 29 2024 – AB brings application for directions before me on the issue of whether the access order of December 3 2019 is still valid and in effect. I hold that it is both. A further application to vary or rescind should be heard on a further date.
   • June 14 2024 – this application to vary or rescind heard and decision reserved.

The Applicant’s position:

6. AB seeks recission of the access order based on objections to the way the investigation was carried out – for example, disclosing her identity and conviction to witnesses interviewed and asking leading and inappropriate questions designed to elicit bad character answers. She also objects to the anticipated procedure at the tribunal hearing – public hearing, no voice masking, use of other “leaked” information – which she contends is inadequate to secure her right to privacy.

7. I find it unnecessary to deal with these points because in my view they have been superseded by a more fundamental issue. [^2] While my jurisdiction is limited to supervision of the youth records, it is necessary for me to deal with this fundamental issue of substantive law in order to make a determination regarding the records.

The Issue:

8. The issue is whether a youth court “conviction” that has ceased to have effect can be placed before and used by a Law Society tribunal considering whether an applicant for admission to the Society is of good character. The issue does not appear to have been previously considered in Ontario or elsewhere. No prior good character hearing in Ontario has focussed wholly or substantially on a youth conviction. [^3]

9. For the reasons that follow, it is my view that neither the conviction itself nor evidence of the crime to which the conviction relates can be used by the LS for the intended purpose or considered by the Tribunal.

Section 82 YCJA:

10. The Law Society’s sole stated purpose is to put the conviction before the tribunal for consideration of whether AB is a person lacking good character who should therefore be refused admission and disqualified from the practice of law in the province.

11. However, Section 82 of the YCJA provides that as soon as a youth disposition has been served – “ceased to have effect” – the conviction is erased – “the young person is deemed not to have been found guilty or convicted of the offence”. There are a few exceptions, but none of them apply here.

Effect of Termination of Youth Sentence

82 (1) Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect , other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act , the young person is deemed not to have been found guilty or convicted of the offence except that

(a) the young person may plead autrefois convict in respect of any subsequent charge relating to the offence;

(b) a youth justice court may consider the finding of guilt in considering an application under subsection 64(1) (application for adult sentence);

(c) any court or justice may consider the finding of guilt in considering an application for judicial interim release or in considering what sentence to impose for any offence; and

(d) the Parole Board of Canada or any provincial parole board may consider the finding of guilt in considering an application for conditional release or for a record suspension under the Criminal Records Act.

(2) For greater certainty and without restricting the generality of subsection (1), an absolute discharge under paragraph 42(2)(b) or the termination of the youth sentence or disposition in respect of an offence for which a young person is found guilty removes any disqualification in respect of the offence to which the young person is subject under any Act of Parliament by reason of a finding of guilt.

Applications for employment

(3) No application form for or relating to the following shall contain any question that by its terms requires the applicant to disclose that he or she has been charged with or found guilty of an offence in respect of which he or she has, under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, been discharged absolutely, or has completed the youth sentence under this Act or the disposition under the Young Offenders Act :

(a) employment in any department, as defined in section 2 of the Financial Administration Act;

(b) employment by any Crown corporation, as defined in section 83 of the Financial Administration Act ;

(c) enrolment in the Canadian Forces; or

(d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

Finding of guilt not a previous conviction

(4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

(a) [Repealed, 2012, c. 1, s. 188 ]

(b) the purpose of determining the adult sentence to be imposed.

12. The words in subsection (1) are clear and unambiguous and as applied to this case mean that AB is deemed not to have been convicted or found guilty of the offence. [^4]

13. This clear and unambiguous meaning has been affirmed by the Supreme Court of Canada. In Re Therrien, 2001 SCC 63, [2001] 3 SCR 3 the Court had occasion to contrast an adult pardon under the Criminal Records Act with section 36 of the Young Offenders Act. The Court held (para 121) that the legal effect of the YOA section (identical to now s 82 YCJA) was that a conviction or finding of guilt for a youth is deemed “ never to have existed ” – perhaps a slight gloss or extension beyond the actual words of the section.

14. Further, the clear wording of the statute and its interpretation in Therrien is completely consistent with the principles underlying the YCJA and section 82 in particular. Effective rehabilitation and reintegration require that young persons be given an opportunity to move on with their life and put their interaction with the criminal justice system behind them so that a young offender is able to enter adulthood free of the stigmatization of a youth record: R v Sheik-Qasim, 2007 ON SC 52983, 230 CCC 3d 531 (Ont Sup Crt Molloy J. ) at para 17 :

    Thus, the policy objectives underlying protecting the confidentiality of young offender records is abundantly clear from the text of the legislation itself, from statements by government officials explaining the purpose of the legislation and from judicial interpretations of the legislation since that time. One of the primary focuses in dealing with young offenders is rehabilitation. The hope underpinning the legislative provisions is that rehabilitated young offenders will be able to leave their troubled pasts behind as they enter adulthood, free of any stigmatization caused by their young offender record. Obviously, that policy is central to s. 82 of the YCJA , which provides that upon the expiry of a sentence under the Act, the young offender is deemed not to have been found guilty of an offence….

15. When a fact or legal status is “deemed” by statute, it is usually not susceptible to challenge or rebuttal. A deemed fact is one that must be taken as true regardless of whether it is actually true. Indeed, it is often clearly a fiction. For example, for many legal purposes a corporation is deemed to be a person.

16. Whether a deemed fact pronounced in a statute should be interpreted as rebuttable or conclusive was discussed in Regina v. Moore and Grazier, [1970] B.C.J. No. 608 (CA). In that case, the accused were charged with committing rape in a moving car that crossed the boundary between two counties sometime before, during or after the offence. However, the allegation referred to only one of the counties. The trial judge instructed the jury that, notwithstanding evidence showing that the rape occurred in the county not mentioned in the allegation, they could apply the s. 419(c) [now s. 476(c)] [^5] deeming provision of the Criminal Code to find that the rape occurred in the county alleged. Bull J.A. for the Court held:

    42 The sole ground alleged is that the word "deemed" as used in s. 419 ( c ) means "deemed until the contrary is proven" and that it was proven that any offence alleged took place in the County of Westminster outside Vancouver. The meaning of the word "deemed" as used in a statute has been considered in many decisions. In my opinion, the proper view is that the word has acquired no technical or peculiar meaning but should be interpreted by reference to the context in which it is used. It can mean "deemed conclusively" or "deemed until the contrary is proved": see Grey v. Kerslake, 1957 SCC 21, [1958] S.C.R. 3 , [1957] I.L.R. 1-279 , 11 D.L.R. (2d) 225 ; Hickey v. Stalker, 1923 ONCA 494, 53 O.L.R. 414 , [1924] 1 D.L.R. 440 , and Constable v. Belvedere Holdings (1962) Ltd., 1966 YKCA 703, 56 W.W.R. 765 .

    43 Where it appears in a statute a great deal depends upon the purpose served by the statute and the necessity of ensuring that such purpose is served: see St. Leon Village Consolidated School District No. 1425 v. Ronceray et al., 1960 MBCA 256, 31 W.W.R. 385 , 23 D.L.R. (2d) 32 . To my mind, the very nature of s. 419( c ) points up that when an offence occurs under the circumstances outlined, an interpretation of "until the contrary is proved" would be quite inappropriate. The obvious purpose of the subsection is to prevent a charge of a crime failing because of some uncertainty or doubt of the location of its actual commission during a journey. In many cases that location may be only within the peculiar knowledge of the person accused of the commission of the crime. Such purpose would be defeated if an interpretation were given so that a charge would fail merely because an accused led evidence that during the journey the occurrence took place in an adjoining territorial division to that charged. It would make the section almost ineffectual. [^6]

17. Similarly in this case, to interpret the declaration in section 82 as being susceptible to contradiction, rebuttal or reversal would make the section totally ineffectual and nullify the clear intention of the statute – to give every young person (subject to the few exceptions) a clean slate after the disposition imposed has been completed. It cannot be that the deemed fact and legal status conferred by the section can be variable on a case-by case basis.

18. In summary, the words of the statute, the authoritative interpretation and the principles underlying youth criminal justice all support the same conclusion – that AB is conclusively deemed never to have committed the offence.

19. Despite the force and clarity of all of this, the Law Society bluntly submits that “Section 82 does not impact its ability to rely on AB’s conviction or the YCJA records for the good character hearing and determination”. No argument or support for this contention is provided except the submission that section 82 should be interpreted “in harmony” with the record access provisions of section 119 YCJA. It is argued that there would be little point in permitting record access up to five years after disposition has ceased to have effect if the records can’t be used during that period.

20. The LS does not say what a harmonious interpretation consistent with the wording of both sections would be, but it seems to suggest that section 82 should be completely revised to provide that the pardon does not actually vest until a further 5 years has passed after disposition. With respect, that is not harmony – it is complete denial of the words, principles and intention underlying section 82. [^7]

21. The LS submission seems to assume that a central purpose for the record access provisions is to provide what might be called “application form” information for prospective employers, professional organizations and the like. But the content and structure of section 119 is completely against such an assumption. No provision is specifically made for access for such purpose and the opening to attempt such a search through subparagraph (s) is extremely narrow and available only to a few. [^8]

22. In any event, there is no disharmony between 82 and 119. Section 119 contemplates record access to many different persons, organizations, and officials for many purposes that are either stated or implied. Access during the applicable record access period is available and will be helpful for many of those parties and purposes. Section 82 as I have interpreted it blocks only one possible use of the records and does so only for rehabilitated youth and for reasons that are grounded in sound principle. The harmonious interpretation is that the records can be accessed and used during this period – just not for a purpose that requires disregard or contradiction of the pardon granted by section 82 to rehabilitated youth.

23. Accordingly, in my view, the fact and legal status deemed by section 82 is conclusive. It follows that no attempt to prove otherwise can be permitted and no court or tribunal can find that AB has been convicted or found guilty of the offence. A finding that contradicts the exoneration granted by section 82 is a destination that cannot be reached by anyone on any evidence .

The Application Form:

24. The Law Society in its written submissions has raised a separate issue regarding the legal correctness of the question that was on the application form that elicited AB’s disclosure of her youth record. If I am correct in my conclusions above, then this issue is academic since neither the application form disclosure, nor any other evidence can result in the finding sought by the LS. But in the event that I am wrong and to correct the record I offer the following comments.

25. The first point is that access to Youth records (probably) cannot be gained through a question on an application form. Eligibility for access, and procedures of the YCJA must be observed. A party seeking such records or information cannot do an end run around those procedures by acquiring the information through other means, such as by cross-examination of a witness at a preliminary: R v Sheik-Qasim, 2007 ON SC 52983 supra para 22 .

26. Admittedly the issue is not settled. While Section 82 specifically forbids such questions on job applications in relation to areas within federal jurisdiction, it is silent with respect to matters within provincial or purely private spheres. In those situations, the legal propriety of such questions is unresolved: See Jones, Rhodes and Birdsell: Prosecuting and Defending YCJA Cases: 2ed p 323-325 . However, it is difficult to see how permitting these other entities to extract by questionnaire such otherwise closely guarded information would be consistent with the case law cited above against end-runs around sections 118 and 119.

27. But even if it was not improper to ask a question that included a requirement to disclose a youth record, the question put to AB in this case was legally wrong and misleading.

28. At a pretrial videoconference in this matter on August 4 th 2023, counsel for the Law Society told the tribunal: ( Transcript August 3 2023 P6-7)

    Ms. Musclow: So, in 2016 which is the time at which the application’s filled out, with respect to question one of the good character section of the application, which dealt with criminal convictions

    ..Answer “No” if under the Young Offenders Act or YCJA you were found guilty of an indictable offence and it has been 5 years since all dispositions in respect of the offence were made or completed ”

    So at that point it had not been five years, so she was obliged to disclose it.

29. AB had completed her sentence in 2014 and was deemed thereafter not to have been convicted or found guilty. There was no further 5 year period that had to elapse before the correct answer was “No”.

30. Counsel for the Law Society in her written submissions has cited links to Law Society directives containing revised questions that, consistent with section 82, tell the applicant to answer “No” if the youth sentence has “ceased to have effect.” [^9] This change confirms that the Law Society itself was aware that the five-year requirement in this question was incorrect. But while the links provided date back to 2016, the year AB applied, the revised question was not the one presented to the applicant as set out above para 28.

31. The misleading and unlawful question compelled the answer which in turn launched the investigation and all subsequent proceedings.

The Access Order:

32. The consent Order of December 3 2019 and the accompanying memorandum of understanding were clear that the parties were agreeing that the specified records could be used as evidence before the Tribunal. The apparent thinking was that once access was granted, the Tribunal would proceed to consider the offence, the passage of time (about 20 years), the rehabilitation and progress of AB and make a decision in the same way that it does when an applicant has an adult record.

33. But I think it is also apparent that no one – myself included – gave any consideration to section 82. That “miss” does not invalidate the Order but section 82 does put the proceedings in an entirely different light. The intended purpose for which access was sought and gained is now understood – at least by me – to be unavailable to the LS. Since there is no other purpose claimed, there is no reason for continued access.

Order:

34. Accordingly, the access Order of December 3 2019 is rescinded. The records shall be returned forthwith to the Brampton Court to my attention.

Endnote

35. It may appear that this decision seriously restricts the Law Society’s ability to vet candidates for membership and authorization to practice law and by so doing exposes the public to potential harm. But this danger should not be over-stated. As mentioned in a footnote above, other organizations, institutions and professions have had no window to access youth records at all much less to use them in their vetting of applicants. As far as I am aware there has been no reported harm or even outcry arising from this restriction.

36. Further whatever restriction has been imposed upon the Law Society it is the result of a considered policy regarding Youth justice that has been in place since the first YOA was enacted almost 50 years ago. Parliament has apparently consistently maintained the view that the salutary effects of providing all rehabilitated youth with a clean slate outweigh whatever negative incidental consequences may arise.

37. Finally, it must be kept in mind that this decision applies only to a narrow fact situation that has not occurred before in the history of the Law Society and is unlikely to arise again. The practical impact on the Law Society’s ability to screen its applicants for good character is almost zero.

August 6, 2024 B Duncan J.

N Sayers for the Applicant AB P Harper for the Respondent Law Society of Ontario

[^1]: Offenders are not “convicted” under the YCJA. They are subject to a finding of guilt. I use ‘convicted” as a short more convenient term. [^2]: This issue arose during the course of the hearing. Counsel were given an opportunity to make submissions in writing and if requested to make further oral submissions. They chose to make written submissions only. They were allowed to set their own timetable. [^3]: My thanks to counsel Ms Harper for searching the LS records at my request. Only one decision T (S.A) v. Law Society, 2015 ONLSTH 22 refers to the applicant’s youth record. The propriety and legality of considering it was not argued or discussed. The concern was solely about how the record would be kept private. [^4]: The legal effect of the section is, for most purposes, to provide for an automatic pardon upon the completion of a youth sentence: Tustin and Lutes: A Guide to the YCJA 2020 ed at P159 . [^5]: This section deals with a crime committed in a vehicle or vessel that crosses or is between territorial jurisdictions in the course of the commission of the offence [^6]: In R v Finta, 1992 ONCA 2783, 1992 OJ 823 (CA) para 150 Tarnopolsky JA referred to Moore on another point – whether territorial jurisdiction was an issue for the judge or for the jury – and pointed out that Moore’s obiter on that point was inconsistent with SCC precedent. The Ontario Court did not deal with the meaning of “deemed”. Similarly, the further appeal in Finta did not deal with “deemed” or refer to Moore at all: {1994} SCJ No 26. [^7]: The harmony principle promotes interpretative harmony of any particular provision with the purpose and principles of the statute as a whole, not just between one section and another. [^8]: An applicant under (s) must show that the administration of justice is implicated in some way. If AB had applied for membership in the College of Physicians and Surgeons or an accountants’ organization neither of those organizations could satisfy this requirement. [^9]: The revised directive is still wrong about the effect of a mandatory prohibition order. A proper reading of section 82 is that a sentence terminates when all dispositions other than a mandatory prohibition order have ceased to have effect. The termination is not delayed until the mandatory order expires.