Court File and Parties

COURT FILE NO.: YC18/0-185-00MO DATE: 20200115 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN N. Ghobrial and J. Tallman, for the Crown/Respondent Respondent

- and -

JUSTICE FOR CHILDREN AND YOUTH S. Ahmed and J. Stewart, for the Intervener/Respondent Intervener/Respondent

-and-

TORONTO COMMUNITY HOUSING CORPORATION R. Parker, for the Applicant Applicant

HEARD: October 7-8, 2019, at Toronto, Ontario Michael G. Quigley J.

Reasons For Decision

Re: Application for Certiorari

Overview

[1] This is an Application for certiorari brought by Toronto Community Housing Corporation (“TCHC”) in relation to a decision by Finlayson J. of the Youth Court denying TCHC access to certain youth records. Those records related to criminal proceedings against the former Respondent, R.V., a young person, who is no longer a party to the proceedings.

[2] TCHC is a not-for-profit housing provider owned by the City of Toronto. It currently provides subsidized housing to nearly 110,000 people across the GTA. Housing in TCHC residential buildings is in very high demand, with some 90,000 families on the waiting list.

[3] TCHC sought R.V.’s youth criminal justice records for the purposes of commencing eviction proceedings against R.V. and his family at the Landlord and Tenant Board ("LTB") on the grounds of “illegality” and “community safety”, pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ("RTA").

Summary of the Facts

[4] In September 2016, R.V. was arrested close to his home at a TCHC residential complex and charged with four offences related to the possession of a firearm and with failure to comply with undertaking. Shortly after, the Applicant TCHC applied to the Youth Court for records on R.V.'s charges, so they could use the information in Landlord Tenant proceedings against R.V. and his family for eviction.

[5] The Applicant made an initial threshold application to the Youth Court to determine preliminary information. At that proceeding, the Youth Court judge, Finlayson J., released information on the following: a confirmation of R.V.'s identity as a TCHC tenant, R.V.'s charges, that R.V.'s charges had been stayed on November 16, 2017, that R.V. had entered into a common law peace bond, and that the records application should be continued under s.119 of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA"), as the records application was brought within one year of the date of disposition of the charges. At that time, the Youth Court judge asked TCHC for an affidavit on the details of R.V.'s tenancy with TCHC, including any information that would be relevant to future LTB proceedings.

[6] TCHC then applied for the following records under s.119 of the YCJA: a disclosure of a certified copy of the court information; and a transcript of the court proceedings involving the stay of R.V.'s charges. TCHC also requested that the Youth Court issue a subpoena for police records.

[7] In order for a third party to a criminal proceeding to get access and receive disclosure of records involving a young person's matters arising out of the YCJA, the third party must rebut the strong presumption against access. Under s. 119(1)(s) of the YCJA, any person can apply to a Youth Court for access to records held by the court, police agencies, and government departments or agencies. However, before the records can be released, the applicant must demonstrate first, that they have “a valid interest” in the records, and second, under s. 119(1)(s)(ii), that release of the records “is desirable in the interest of the proper administration of justice”. TCHC describes that second part of test differently. They describe it, in this case, as requiring that advancing their public safety mandate for their broader tenant population is compelling enough to override the young person's constitutionally protected privacy rights and therefore the release of records is in the interests of the administration of justice.

[8] At the Records Application, R.V. conceded that TCHC had a valid interest in the records. The only issue to be determined was whether the release of the records to TCHC was desirable “in the proper administration of justice”.

[9] At the initial threshold application, the Youth Court judge stated he would be taking R.V.'s personal circumstances into account in determining whether to disclose the records in the ultimate s. 119 Records Application, including the hypothetical possible outcomes of the RTA proceeding.

[10] At a later scheduling appearance, the judge advised counsel that the possible consequences of disclosure would be relevant to his determination of whether to disclose the records under s.119 of the YCJA. TCHC also notes that the judge repeatedly expressed concerns about the impact of potential eviction proceedings on R.V. and his family at that time. Although the judge said he would hear submissions on that point, he reiterated his concern about R.V.'s diminished moral blameworthiness as a young person, and the potential impact of eviction on not just R.V. but on other members of his family.

[11] Both the Crown and counsel for TCHC expressed concern about these comments. In their submissions, the Youth Court was not the forum to decide the eviction issue, and they noted there was another forum specifically set up to balance the rights of the people impacted by the Applicant's potential future eviction application.

[12] The Records Application proceeded on June 23, 2018. In the result, Finlayson J. denied the application. In sum, he found that access to the records sought would not achieve the TCHC's goal of advancing safety on its property to a degree sufficient to override the privacy interest of the young person.

[13] He found the possibility of eviction, and the LTB proceedings themselves, could cause R.V. and his family stress, and prevent R.V.'s continuing rehabilitation and reintegration into the community. He found that the potential possibility of eviction and the harms that would arise from that would be inconsistent with the purpose and principles of the YCJA.

[14] On September 20, 2018 the limitation period for TCHC to apply for relief to the Landlord Tenant Board expired.

[15] Initially, this matter was to be heard on April 1, 2019. However, the full-day hearing scheduled for that day was abandoned on consent of all parties, and the matter returned before Schreck J. on June 10, 2019.

[16] As I have noted, R.V. had previously been a participant to this application, ably represented by counsel, but with the expiry of the limitation period and TCHC’s decision to no longer pursue eviction against R.V. and his family, R.V. withdrew from the case.

[17] It is important that the parties all agree that this matter became moot at that time. Not surprisingly, when it came before Schreck J. on June 10, 2019, the parties discussed whether the matter would or should proceed in light of that development, and if so, how.

[18] Regardless of their concession that the issue was moot, TCHC nevertheless requested that the Court exercise its discretion to hear the matter. Apart from accepting that the Applicant had standing to at least make that argument, the Crown took no substantive position. However, the Crown did make submissions on a collateral issue. The Intervener, Justice for Children and Youth ("JFCY") opposed the Applicant’s request that the Court hear the application, based on the concession that the issue was and is moot.

[19] Schreck J. adjourned the hearing to October 1, 2019. His endorsement that day read as follows:

The parties agree the matter is moot but TCHC takes the position the application should nevertheless be heard. R.V. has no more interest and will no longer participate. The order granting JFCY leave to intervene is varied to allow JFCY to respond to the mootness issue, which will be argued at the time the application is scheduled to be heard. Ms. Parker may file an additional 15 page factum re Mootness. All filings to be in accordance with the Rules.

[20] Thus, it seemed on June l0, 2019 that counsel for the Intervener agreed to take an adversarial position in the case in lieu of the presence of R.V. As described below, however, the Intervener took a different position before me. The Crown, of course, was involved as the representative of the Youth Court, but it took no position on the application, other than to argue, that there is a procedure in place developed following the decision in D.P. v. Wagg that should be followed in such cases, to protect the privacy interests of those concerned where documents or records are released.

Standard of Review

[21] There is no right of appeal from a Youth Court's decision on the disclosure of records to the Superior Court of Justice, but the Superior Court can review the Youth Court decision by writ of certiorari under Part XXVI of the Criminal Code, R.S.C. 1985, c. C-46 [see Toronto (Police Service) v. L.D., 2018 ONCA 17, at para. 3].

[22] In an application for certiorari by a third party to the proceedings, a court may only quash a decision of a lower court if (i) the court below exceeded its jurisdiction or (ii) if there is an error of law on the face of the record relating to a decision of a final and conclusive character vis-a-vis the third party [see R. v. Awashish, 2018 SCC 45, at para. 12].

[23] Granting certiorari is a discretionary decision of the reviewing court [see R. v. Papadopoulous, 2005 ONCA 8662]. Certiorari is an extraordinary remedy and it cannot be used to substitute one judge's discretion for that of another [see R. v. T.S., 1994 SCC 40: at para. 19 (concurring reasons)].

Positions of the Parties

[24] The Applicant TCHC argues that the Youth Court Judge, Finlayson J., exceeded his jurisdiction and misapplied the law in dismissing the application and refusing TCHC access to R.V.’s YCJA records. TCHC accordingly applies for judicial review by way of certiorari to quash that decision.

[25] The Intervener JFCY takes the position that TCHC failed to rebut the presumption against access to records under the YCJA. It resists TCHC’s request to be granted the highly discretionary remedy of certiorari from this Court since its application for access and disclosure of R.V.'s records was dismissed by the Youth Court, the court specifically qualified to determine those issues.

[26] The Intervener argues that the YCJA constitutes a complete code with respect to the administration of youth criminal justice, based on the principle of young people's reduced moral blameworthiness. The YCJA prioritizes rehabilitation and reintegration and the avoidance of stigma for young people. The protection of a young person’s privacy is fundamental to these objectives. It follows that these principles constitute an important component of analysis related to requests for access and disclosure of youth criminal justice records.

[27] Further, the Intervener contends that the analysis of a request for access and disclosure will always be a fact-driven and contextual inquiry, individual to the particular request. It is not contrary to the proper administration of justice for a collateral proceeding to be halted if a records request is denied.

[28] As mentioned, the Respondent Crown took no position on the merits of the application. It advised in a September 30, 2019 letter to the Court that it supported the Applicant's position that it had standing to argue the application [see Law Society of Upper Canada v. Skapinker, 1984 SCC 3; R. v. Mercure, 1988 SCC 107], but would make no submissions on its own. However, to assist the Court, in the event the merits of the case were to be considered, the Crown provided submissions on two issues:

(i) the appropriate legal test when ordering production pursuant to Part VI of the YCJA; and (ii) the interplay between production under Part VI of the YCJA and the Court of Appeal for Ontario's decision in D.P. v. Wagg.

Mootness

[29] Borowski v. Canada (Attorney General), 1989 SCC 123, is the seminal case on the doctrine of mootness. At paragraph 15, the Supreme Court states a court will generally not hear an appeal that is moot:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

[30] There is a two-step process to assessing mootness [see Borowski v. Canada (Attorney General), 1989 SCC 123, at para. 16]. The questions the Court must ask are the following:

(i) Has the required tangible and concrete dispute disappeared and have the issues become academic? If so, then the Court must proceed to the second step. (ii) Should the Court decide to exercise its discretion and hear the appeal in any event?

[31] If the dispute has disappeared, Borowski calls upon the Court to consider three distinct questions in exercising their discretion to hear the appeal:

(i) Is there an adversarial context present in the case, including relative to potential collateral consequences of the outcome? (ii) Is there a concern for conserving the Court's resources, that is, for preserving judicial economy? (iii) Does the Court need demonstrate a measure of awareness of its proper law-making function? Stated differently, would deciding the question in appeal lie more properly within the purview and role of the legislature?

[32] At the time of this certiorari proceeding, the Applicant acknowledged that they would no longer take any further action against R.V. to obtain the records from the Youth Court or by pursuing eviction proceedings at the LTB. In response, and as such, no longer being a person engaged in the lis, R.V. has abandoned these proceedings.

[33] Nevertheless, the Applicant argues that this case should be heard, because in its submission, there is a gap in the law when third party access to youth records is “desirable in the interest of the proper administration of justice”, as they claim it is in this case. TCHC claims that accessing youth records is crucial in enforcing public safety, when there is knowledge that a tenant “has conducted illegal acts on its property”, but TCHC observes that there is little direction from the Courts.

[34] The Intervener argues, however, that this issue is moot and should not be heard. In its submission, not only is there no persisting adversarial context, but there is also no factual basis on which the Court can properly consider when Youth Court records should be released or not. Neither, in its submission, does its presence as Intervener provide the necessary adversarial context in this case, as they claim to have been accepted as Intervener only to provide expertise on the rights and protections that ought to be considered by the Youth Court in a records application.

[35] Furthermore, the Intervener submits:

(i) that declining to hear this case on the basis of mootness will not act as a bar to landlords applying for youth records, as any and every records application depends on the unique facts and circumstances of the case, (ii) that it is not in the interests of judicial economy to hear the case, (iii) that the issues are not "evasive of review", because a landlord can initiate a records request before the Court proceedings are concluded, and (iv) that a landlord can still commence a request to start proceedings at the LTB before the LTB limitation period expires.

[36] It is evident and conceded that the first step is satisfied. There is no longer any dispute between TCHC and R.V., as TCHC has decided not to continue their eviction proceedings. In my view, despite the common concession that the issue is moot, the Applicant has not succeeded in discharging its burden on the second level of the test to show that the case should nevertheless be heard. I find the Intervener's arguments on mootness to be compelling. Let me move through the analytical steps to explain why I find this conclusion unavoidable.

[37] To answer the first question raised by Borowski, I find that there is no meaningful adversarial context present in the case, nor are there potential collateral consequences of the outcome that will provide the necessary adversarial context. The core reason is simple, though multifaceted.

[38] R.V. has abandoned the proceedings. Whatever the outcome of this application, there will be no impact on either R.V. or TCHC. At most, any finding I make will be little more than obiter dictum, because there will be no agreed and consistent adversarial factual situation to which such a finding could apply. What will be left if the case were to be heard will be an inconsequential and meaningless determination relative to the production of youth justice records, a determination made in a vacuum. Such a finding cannot possibly have either binding or precedential value. In my view, the determination cannot and should not be made in these circumstances. It is the absence of actual live facts and circumstances against which a request for access to youth records can be balanced, that creates that vacuum.

[39] The Applicant claims that accessing youth records is crucial in enforcing public safety, when there is knowledge that a tenant “has conducted illegal acts on its property”. However, given the finding of the Youth Court that the charges against R.V. should be stayed, or if the Youth Court has found a youth to be not guilty of charges,” then there is arguably no foundation for TCHC to claim that there has been illegal conduct perpetrated on its property requiring the eviction of the tenant, at least in a Criminal Code context.

[40] On the other hand, counsel argues that "illegal acts" takes a different meaning in RTA context before the LTB. While it is true that charges stayed are not "illegal acts" under the Criminal Code or the YCJA, charges stayed can be "illegal acts" under the RTA. Section 61 of the RTA allows for termination of a tenancy for cause based on an “illegal act”, and section 75 of the RTA states that:

75 The Board may issue an order terminating a tenancy and evicting a tenant in an application under section 69 based on a notice of termination under section 61 whether or not the tenant or other person has been convicted of an offence relating to an illegal act, trade, business or occupation. [my emphasis].

[41] I accept that different arguments would and could be made if the disposition of the charges at the Youth Court resulted in a conviction. In such case, the determination of the Youth Court, a Court invested with the exclusive statutory jurisdiction to make criminal determinations relative to young persons, would seemingly permit the conclusion that so-called “illegal conduct” had occurred. That alone would not answer the question of whether youth records should be produced, but it would at least result in a finding of “illegal conduct” by a youth in a location such as on a TCHC property.

[42] The LTB does have the power to determine whether an "illegal act" occurred for purposes of the RTA, even if there is no conviction under the YCJA. All the landlord has to do is satisfy the LTB, and to a mere balance of probabilities standard, not beyond a reasonable doubt, that the tenant committed some sort of illegal act, based on any evidence adduced, possibly a police officer’s testimony, or the landlord's testimony, or the youth records, if they were produced. Without deciding the point, such evidence appears capable, in turn, of informing the commencement of an eviction proceeding. In that proceeding, the LTB, an administrative tribunal, albeit expert in its field and presumed to be owed deference, may reach an eviction conclusion that, as Finlayson J. says in his reasons, would create results directly contrary to the purposes of the YCJA.

[43] So the question remains: which should take precedence? Should the concerns that underlie the release of youth records yield to the concerns of a landlord for the safety of its property and tenants? Should this question be informed by the consequences that might ensue from eviction of the youth, as in this case, or is the landlords concern the greater good?

[44] This highlights the ultimate point. Given the agreed mootness of this case, the absence of live adversarial parties, and the absence of a factual matrix capable of being fully litigated and evaluated, for both its direct and potential collateral consequences, in my view this is not the case that should decide these questions. In my view, it shows why there is little merit in this Court deploying scarce resources to consider this moot case at this time.

[45] The Applicant goes on to argue that this case should be heard because it claims that there is a gap in the law when access to youth records is “desirable in the interest of the proper administration of justice”, as it claims it is in this case.

[46] On the second question of Borowski, there may be some merit to the Applicant's argument that judicial economy concerns should be set aside, on the basis that this is an important legal issue in light of enforcing public safety. Further, it is at least arguable, though not persuasive in my view, that there is a gap in the law on what is "desirable in the interest of the proper administration of justice" after the decision in Toronto (City) Police Service v. L.D.

[47] In that case, a police officer was subject of disciplinary action as a result of an allegation that the officer assaulted a youth offender, L.D., and the officer sought disclosure of records relating to any other incidents where D. was investigated, detained, arrested, convicted, and/or prosecuted, to assist in his own defence in the disciplinary proceedings. The applications judge in the Ontario Court of Justice dismissed those requests by the prosecuting police service and officer for disclosure of D.’s youth records [see Toronto (City) Police Service v. L.D., 2015 ONCJ 430]. The police service appealed to this Court.

[48] Morgan J. allowed that appeal and, in robust reasons, found that the records ought to be produced. D. was not on trial, but he was a witness who had made serious allegations against an officer facing discipline proceedings. That officer had the right to be treated fairly. Full disclosure would help to ensure that all possible admissible evidence relevant to the dispute was placed before the panel adjudicating on the discipline hearing, and ensure fairness and transparency. In Morgan J.’s view, the Youth Justice policy of confidentiality based on diminished moral blameworthiness could not override the officer's right to procedural fairness. Testing the credibility of witnesses was just as important in administrative or disciplinary proceedings, where proceedings of that very nature demanded that the rules of procedural fairness apply, so that need had to be viewed as a necessary exception to general rule of anonymity. Otherwise, however, the terms of the YCJA would continue to apply, including that D.'s name and any other identifying information be initialized or edited out [see Toronto Police Service v. D. (L.), 2016 ONSC 5500].

[49] However, the Court of Appeal [see Toronto (Police Service) v. L.D., 2018 ONCA 17] did not see the matter the same way procedurally. It determined that there was no right of appeal from the decision of the Youth Court to the Superior Court of Justice. Instead, the matter should have come to the Superior Court as a judicial review of the Youth Court’s decision by way of a certiorari application under Part XXVI of the Criminal Code, as the Applicant has done in this case. While acknowledging that it was open to the Court of Appeal to treat the decision of the Superior Court judge as if it were made on an application for certiorari and to determine this appeal despite the error at the Superior Court, it declined to do so in the circumstances of this case. It noted that had the proper procedure been followed, the result on appeal would have been different because a different standard of review would have applied, and different remedies would have been available. At para. 26, MacPherson J.A. stated as follows:

The combination of the different results in the two courts below, the robust review applied by the appeal judge in overturning the decision of the youth court judge (a review that, arguably, went beyond the jurisdiction and error of law on the face of the record construct of a certiorari review), and the fact that the facta and oral submissions of the parties and interveners focused predominantly on the appeal judge's reasons rather than those of the youth court judge, means that this court is not well-placed, at this juncture, to determine this appeal. [My emphasis]

[50] I am mindful here, where the application is for judicial review by way of certiorari, that I would be limited to determining whether the Court below exceeded its jurisdiction or there was an error of law made on the face of the record relating to a decision of a final and conclusive character vis-a-vis the third party Applicant [see R. v. Awashish, 2018 SCC 45, at para. 12]. I will return to that subject briefly later.

[51] In my view, however, there is another question present here, an extension of the earlier question, and it is also persuasive to me on the issue of declining to hear this case. That question is whether the "interest of the proper administration of justice" referenced in s.119 (s)(ii) of the YCJA is different and distinct from what TCHC believes is in the interest of the proper administration of justice. TCHC submits that the release of youth records is in the interests of the administration of justice because it would result in the proper administration of TCHC properties. This point was addressed by the Supreme Court of Canada in Re N. (F.), 2000 SCC 35, albeit in somewhat different circumstances.

[52] The accused young person there was charged with two counts of assault and released on his own recognizance. He was later charged with a breach of a condition of his release. He appeared in the Youth Court Division of the Provincial Court in Newfoundland, but the charges were later dismissed.

[53] However, there was a practice that Youth Court dockets were routinely sent to two school boards in the city of St. John’s by administrators. Evidently, the information contained in the dockets was used by school psychologists and by others, on a need-to-know basis, and the distribution of the dockets was done on the recommendation of the "Youth Justice Concerns Committee", a purely advisory body, with no statutory powers or duties. Distribution of the docket was not limited to the school boards responsible for schools attended by the young people on the docket.

[54] The accused, N. applied for an order prohibiting the routine distribution of the dockets. The application was dismissed by the motions judge, and N.’s appeal was dismissed, but the Supreme Court allowed his appeal on the basis that the disclosure of the docket was not permissible under s. 38(1.13) of the Young Offenders Act (the predecessor to the current YCJA). The Court acknowledged that the Act created two distinct but mutually reinforcing regimes to control information about a young offender. The first are the provisions found commencing in the Young Offenders Act at s. 38(1), that prohibit any person from publishing any report by any means, that identify a young offender with an offence or proceeding under that Act, and the second regime, relative to records, was controlled by ss. 40-44 of that Act.

[55] Binnie J., writing for the Court, concluded that routine disclosure of the Youth Court dockets violated the non-disclosure provisions of the Young Offenders Act. Although exceptions to the general non-disclosure provisions did exist within the Young Offenders Act, these exceptions did not allow the routine distribution of Youth Court dockets to the two school boards. He also accepted that the scheme of the Act does not attempt to achieve rehabilitation of the offender at the expense of public safety and observed that the Supreme Court had occasion in R. v. M. (M.R.), 1998 SCC 770, to express particular concern about safety in the schools. However, at paras. 35 and 36, he concludes in part, as follows:

School boards do have a legitimate interest in knowing of members of its student body that could present a danger to themselves or others. The schools may well desire the information for their own purposes. (The letter of the Chief Judge, supra, identified one of the objectives as the control of truancy, but this is not a purpose recognized as valid under the statutory scheme.) In my opinion, the school boards have not made a convincing case that their specific interest in the confidential information is related to the administration of justice as opposed to the administration of the schools.

Order and discipline in the schools are a very important consideration but Parliament's restrictions in s. 44.1(1)(k) [of the Act] have to be respected. In this case, they were not. In summary:

1. disclosure was not authorized by a judge;
2. distribution was not limited to the Board responsible for the appellant's school. The recipient board must have a valid interest in the record relating to the young person; and
3. the information was distributed for school purposes and not for purposes related to the administration of justice. [My emphasis]

[56] While the production of Youth Court records in the circumstances of this case may arguably raise more significant public safety concerns than were present in N.(F.), the fundamental concern remains that TCHC must be able to demonstrate that their specific interest in the confidential information is related to the administration of justice as opposed to the administration of TCHC properties. In order to do so, in these circumstances, two requirements must be met. TCHC must have a valid interest in the records sought, a point that the parties concede. However, their interest must not be in records for young persons writ large, but rather relating to the specific young person in issue. Here, there no longer is a specific young person whose conduct and records are in issue, as R.V. has abandoned the proceedings.

[57] I do not doubt that this is an important legal issue, especially to TCHC, but I find that following the departure of R.V., this matter does not rise to a level of importance such that the application should be heard. As noted by the Interveners, there is no evidence of a pressing need to routinely obtain youth records. There is no evidence that this application raises broad questions of significant social importance, or that there would be significant or general public interest in its outcome [see Tamil Co-operative Homes v. Arulappah, 2000 ONCA 5726, at para. 28].

[58] The importance of a legal issue is not enough to set aside discretion to hear the moot appeal. It must reach a higher level of importance, where it would involve strong public interest. In Tamil Co-operative, the Ontario Court of Appeal stated the following at para. 24:

The importance of a legal issue raised in a proceeding is a relevant consideration in determining whether a court should hear a moot appeal. It is not, however, determinative. There are an almost infinite number of important legal issues lurking in the myriad of rules and regulations governing the citizenry upon which those interested in the issue would appreciate the opinion of an appellate court. If the importance of a legal issue is enough to overcome concerns associated with hearing moot appeals, the doctrine has little value.

[59] As for the Applicant's argument that there is a "gap" in the law, while arguable, I do not find it to be convincing, because plainly the test under s.119 of the YCJA is a discretionary one that, as the legislation appears to contemplate, is best left to the expertise of a Youth Court. As noted by the Intervener, the records application is a fact-driven inquiry. There is no gap to address in this case. There may be in other facts and circumstances that can address the question of what is "desirable in the interests of the proper administration of justice", but those are not present here.

[60] Indeed, in Tamil Co-operative, the Court of Appeal overturned the Divisional Court's ruling to hear a moot appeal on a judge's scope of discretion to grant a tenant's application for possession of a co-op housing unit if it would "be unfair to grant it" under s. 171.21(1)(a) of the Co-operative Corporations Act, R.S.O. 1990 c. C.35. At the time of the Divisional Court review, the tenant abandoned her claim to possession of the co-op unit, rendering the review moot. The Ontario Court of Appeal found that determining the scope of discretion under the Co-operative Corporations Act could not be addressed in a "factual vacuum." The Court continued:

Judicial discretion must respond to specific circumstances. Any attempts to describe discretion in a factual vacuum will provide little or no guidance to those required to apply that discretion in subsequent cases. [see Tamil Co-operative Homes v. Arulappah, 2000 ONCA 5726, at para. 33]

[61] Just because one party could benefit from a Court's guidance on how to exercise discretion in a future proceeding was not enough to hear the moot appeal. In my view, that is the exact case here. On the basis of these foregoing reasons that there is no sufficient adversarial context nor is this appeal an issue important enough to forgo preserving judicial economy. I find that this is not a case where the discretion to hear a moot appeal should be exercised. On that basis, the Application is dismissed.

Certiorari

[62] While it is not necessary for the purposes of disposing of the application, I find it appropriate to comment on several of the arguments made by the Applicant that the Youth Court judge exceeded his jurisdiction and therefore the remedy of certiorari should be granted.

[63] First, the Applicant argued that the Youth Court Judge should not have incorporated the general goals and principles of the YCJA for access - specifically, that he should not have relied on the presumption of diminished moral blameworthiness, ensuring outcomes that promote rehabilitation and reintegration, and protecting R.V. from the long-term negative consequences of youthful offending behavior. The Applicant went on to argue that the Youth Court judge also exceeded his jurisdiction by weighing the impact of records disclosure on non-parties, like his family, specifically his brother, and the impact of eviction on them. Finally, the Applicant argued that the Youth Court judge was usurping the role of the LTB and speculating that there would have been "very real possibility" of eviction, when it is admittedly the LTB's jurisdiction to determine eviction proceedings.

[64] First, the parties specifically accepted before Finlayson J. that he was fully entitled to consider the possibility of eviction in his decision.

[65] While unnecessary to my disposition, I was not persuaded that the Youth Court judge's decision and analysis were not properly within his jurisdiction, or that he did commit an error of law in his exercise of discretion. Appellate jurisprudence in Canada consistently accepts that judges of the Youth Court, like the Application judge in this case, are in the unique position of having the expertise to weigh a young person's privacy interests, along with the unique factors that would impact the particular young person in deciding whether the records should be released. The Youth Court judge weighed that with the public interest in safety on TCHC property. In S.L. v. N.B., 2005 ONCA 11391, at para. 54, the Ontario Court of Appeal reminds us that:

Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications.

[66] Here, I was not shown evidence that the Youth Court judge failed to observe a mandatory provision of a statute, or that his decision breached the principles of natural justice, or that he committed any errors of law in his decision. However, I make no findings on any of those matters, in light of my disposition.

The Respondent Crown on D.P. v. Wagg

[67] I have noted that the Respondent Crown took no position on the Application, but did make submissions on the appropriate procedure on the records application. The Crown argued that the best way to balance privacy interests of young persons against the interests at issue in collateral proceedings would be to follow the procedure outlined in D.P. v. Wagg. That decision established a requirement that when a non-party is seeking production of documents created for the investigation or prosecution of a crime, the Attorney General and investigating police service are entitled to screen the documents for privilege, public interest immunity, or other public policy concerns prior to release.

[68] The Crown submitted that this procedure should be applied to YCJA records applications by third parties and envisages a two-step process. The Applicant would make a records application under either s. 119 or s. 123 of the YCJA. If the Applicant satisfies that test, then the records would be released from police to the Crown for review. The records would only be producible thereafter in the collateral proceedings, which in this case were the proposed eviction proceedings at the LTB, pursuant to a further order in the collateral proceedings. Alternatively, the Crown suggests the Youth Court judge could first release the records to the Crown for review, and after the Crown had completed its review according to the principles in Wagg, the application would return to the Youth Court for final disposition.

[69] While these are interesting proposed procedures that may find favour with another court in future, in light of the conclusions reached here, it would be inappropriate to consider them further in the context of this application.

Michael G. Quigley J. Released: January 15, 2020