Court File and Parties

ONTARIO COURT OF JUSTICE East Region (Ottawa)

DATE: 2024 10 18 COURT FILE No.: 24-Y1140043

IN THE MATTER OF an Application for a Record of an Unnamed Young Person pursuant to the Youth Criminal Justice Act

Endorsement

WADDEN J:

[1] This is an application brought by the Crown for use of a Report ordered by me under s. 34 of the Youth Criminal Justice Act (“YCJA”). The Crown seeks to use portions of the Report in cross-examination of a psychiatrist in an unrelated case. The Crown suggests that the psychiatrist used identical words and conclusions in different reports and suggests that this raises concerns similar to those found in R v. Nettleton 2023 ONSC 3390. To use the Report in the other proceeding, the Crown would need to disclose parts of the Report to the relevant parties in that case, including defence counsel, the judge and the witness being cross-examined.

[2] The Attorney General (and counsel acting on their behalf) has a right of access to any youth record, including a s. 34 report, through ss. 119(1)(c) and 119(6) of the YCJA. The Court of Appeal, in S.L. v. N.B., 196 O.A.C. 320; 195 C.C.C. (3d) 481, has stated that right of access is not discretionary, and does not require an application to a youth court judge. The Court commented, at para. 47, on the process for persons who have a right to access under s. 119(1) and stated that “this procedure does not require a formal motion to the court or notice to any individuals.” The Court stated, “It involves a simple request to the court office, presumably directed to a court administrator [and] subject to the narrow exceptions referred to above, the court administrator would be obligated to allow counsel access to the court records.”

[3] The question arises, though, of what the Attorney General may do with a youth record, including a s. 34 report, in its possession. Section 118 of the YCJA states that “no information contained [in a youth record] may be given to any person, where to do so would identify the young person to whom it relates …”

[4] Section 119(1)(s) of the YCJA allows for an application to be made to a youth court judge, who may allow access to any person that the 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 desirable in the interest of the proper administration of justice. In S.L. v. N.B., the Court stated, at para. 54,

The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records. The language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the Act. Using the words of Cory J.A. in Cook, Parliament in “clear and unambiguous terms” has placed the responsibility for determining access to records on the shoulders of the youth justice court judges.

[5] In dealing with a record with as much detailed and sensitive information as a s. 34 report, an application to a youth court judge under s. 119(1)(s) is the best practice to determine that disclosure of the report, or parts of it, will not violate s. 118 of the YCJA.

[6] In this matter, the application proceeded pursuant to s. 119(1)(s) as an ex parte application, in camera. A neutral court file number, not associated with any ongoing proceeding, was assigned. The Crown presented a redacted version of the Report for consideration. All references to the name, initials, date of birth or any other identifying features of the young person were redacted. Of a forty-three page Report, thirty-seven pages were almost entirely redacted. Of the remainder, only a portion of each page is sought to be released, consisting of passages the crown submits are identically written in this Report and the report in the other proceeding. The Crown explained its reasons for each requested passage through oral submissions. As submissions unfolded, further redactions were made.

[7] At the conclusion of the hearing, I was satisfied that the redacted Report does not contain information that would identify the young person who is the subject of the Report. I am also satisfied that the Crown has raised a valid reason for using the Report, although its use in the other proceeding will be subject to the discretion of the presiding judge. I am persuaded that allowing release of a redacted copy of the Report to involved parties in that case is in the best interests of the administration of justice.

[8] Therefore, counsel for the Attorney General is permitted to release the redacted Report to the presiding judge, defence counsel (and through counsel to the accused) and the witness, in the other proceeding.

Date: October 18, 2024 Justice Robert Wadden Ontario Court of Justice