WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
DBCFS v. L.S.K. and B.C.F., 2022 ONSC 6176
COURT FILE NO.: FC-20-20-0000
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dnaagdawenmag Binnoojiiyag Child & Family Services
Katie Akey, for the Applicant
Applicant
- and -
L.S.K.
Christina Roncossek, for the Respondent mother
Respondent mother
- and -
B.C.F.
Charles Morison, for the Respondent father
Respondent father
Also In attendance:
Ken Dutka, for the Office of the Children’s Lawyer, for the child, O.G.F., with the child O.G.F.
Katherine Hensel, Amicus Curiae
HEARD: October 28, 2022
RELEASED: October 31, 2022
JUSTICE ALEX FINLAYSON
PART I: OVERVIEW
[1] On October 28, 2022, the parents and the child, their counsel, amicus curiae in this matter, and two individuals from the facility in which O. is currently detained, appeared before me for the half day Trial Scheduling Conference referred to in this Court’s decision of August 5, 2022: see DBCFS v. L.S.K and B.C.F., 2022 ONSC 4570 (the “August 5, 2022 Decision”) (see also the supplementary decision DBCFS v. L.S.K. v. B.S.F., 2022 ONSC 4724 subsequently released on August 15, 2022). The Court was unable to complete the Trial Scheduling Conference on October 28, 2022.
[2] The parties are also unable to proceed to a trial on the November, 2022 sittings as ordered, for three interrelated reasons. First, there have been new developments relating to O.’s circumstances involving more charges. Second, DBCFS’ has been unable to complete the trial directions in the August 5, 2022 Decision, in part because it has been unable to obtain certain orders that it needs from the Youth Court for access to O.’s records, to prepare for the next steps in this proceeding. Third, DBCFS has filed a new Plan of Care, which now incorporates the recommendations of Dr. Sherman’s assessment report. But DBCFS’ Plan of Care does not yet have all of the specific service providers identified, to provide the numerous services that the assessment report says are required. Amicus is still in the process of preparing a brief of services for O. that might form part of a Plan of Care for him, or that will be part of evidence at the trial. Amicus advised the Court that more resources are available in the Toronto area. These may be more accessible if O. remains in Oshawa. It is my understanding that O. is currently in a place of open detention in Oshawa. The question of O.’s longer term housing remains to be determined.
[3] Although the Court agreed to adjourn the trial on terms, the Court still used October 28, 2022 to engage in some discussions with the parties about how this case might move forward between now and the new trial dates, perhaps more consensually. This case cries out for a coordinated approach between the child welfare matter and any pending youth court matters.
[4] The Court’s reasons for granting another adjournment on terms are set out below. It is necessary for the Court to discuss the lack of coordination between this matter and O.’s matters before the Youth Court, since this case is being heard in this jurisdiction where the legal jurisdiction over child welfare and youth court matters is divided in different courts. In so doing, I will discuss the privacy provisions of the Youth Criminal Justice Act, S.C. 2002 c. 1, as amended (the “YCJA”). I provide my view about why the records are both essential in this proceeding, and are eligible to be ordered disclosed for use in this case. I discuss how the continued unavailability of record has contributed to another unfortunately delay in this case. Additional directions in the nature of case management will also follow.
PART II: THE PRIOR PROCEEDINGS UPDATED
[5] The prior proceedings in this case are set out in considerable detail in the August 5, 2022 Decision. Among other orders made in the August 5, 2022 Decision, at ¶ 184(m) and (n), I made orders respecting the manner in which DBCFS would present its evidence at trial. I listed the topics that DBCFS needs to cover in its evidence for trial, to address the applicable statutory frameworks that apply. At ¶ 184(o), I directed DBCFS to obtain relevant records that it would need for the evidence in this case, including records that may be governed by Part 6 of the YCJA. At ¶ 184(p), I directed DBCFS to consider whether it needed to bring an application under section 119 of the YCJA before the Youth Court, to obtain O.’s records.
[6] In late August, 2022, DBCFS filed a 14B Motion before me to obtain a production order for various records, including records relating to YCJA matters. On September 13, 2022, I granted the motion in part. Because this Court is not a designated Youth Court, I could not make an order for some of the records sought captured by Part 6 of the YCJA. But I also noted in the Endorsement of that day, that DBCFS would be unable to complete its trial affidavit until the matter was dealt with in the Ontario Court of Justice.
[7] While the next scheduled date in this matter was supposed to be October 28, 2022, DBCFS brought the case forward early on September 27, 2022, when it filed a motion for O. to be brought into care. According to the material filed, on September 19, 2022 the father called DBCFS to report that O. had threatened to kill him and was engaging in other, very disturbing behaviour. The father said he wanted to “sign a TCA to get O. into care immediately”. In the days that followed, DBCFS implemented various steps, in crisis mode, to try to protect O. This included seeking two orders from justices of the peace to have O. sent to the hospital on a Form, one of which was granted.
[8] After his discharge from hospital, O. ran away, saying that he would not be found until he was 16 and would have “more rights and a say in his living circumstances”. On September 26, 2022, the father changed his request, now asking whether DBCFS “could provide a hotel for O. until his VYSA could be ready”.
[9] I made an unopposed order pacing O. in the temporary care and custody of DBCFS on September 27, 2022. Meanwhile, at that appearance, Ms. Akey expressed concerns about her ability to comply with the trial directions that had been imposed on DBCFS in the August 5, 2022 Decision. At Ms. Akey’s request, I extended the timelines to enable her to complete her work. By this point, I understand that DBCFS had already made its first unsuccessful attempt to bring an application for O.’s records under the YCJA.
[10] I understand that by October 28, 2022, there had been a further attendance before the Youth Court on the records application. Once again, the application was not granted.
[11] I am told that there is a further attendance scheduled in the Youth Court, tomorrow.
PART III: THE RECORDS SOUGHT UNDER THE YCJA
A. The Most Recent Position Respecting Access Under Section 119 of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[12] DBCFS now submits that it may now not be entitled to O.’s records that pertain to pending criminal charges. This is because section 119(2) of the YCJA does not specifically list a period of access for records relating to pending criminal charges. A distinction may be drawn between the release of records pertaining to charges that have been resolved, only. It is my impression that an Order for access to just those records, if made, will not likely yield the necessary picture that this Court requires for it to discharge its duties under child welfare legislation. If this is the end result in the Youth Court, this Court may be asked to amend, again, the trial directions in the August 5, 2022 Decision. I am not prepared to do that, at least not at this time.
[13] To be clear, I have been given no written ruling or transcript of oral reasons from the Youth Court. I have also not had the benefit of the submissions made to that Court. Recognizing the absence of this information, and with the utmost of respect, the above interpretation of Part 6 of the YCJA is not my interpretation of the relevant provisions.
B. This Court’s Need for Both Information and Documentation in This Proceeding
[14] It is important to set out again why it is vital that this Court receive information about the YCJA matters that O. is facing. To some degree, these are already explained in the August 5, 2022 Decision. Beginning at ¶ 113 of the August 5, 2022 decision, I set out the statutory frameworks that will govern the trial in this case. I explained that the paramount purpose of the Child, Youth and Family Services Act, 2017, S.O., 2017 c. 14, Schedule 1, as amended (the “CYFSA”) is to promote the best interests, protection and well-being of children. I note that section 1(2) contains a list of other purposes, where consistent with the paramount purpose. Many of those other purposes in section 1(2) concern service provision and planning for child.
[15] At ¶ 139-143 of the August 5, 2022 Decision, I wrote that Dr. Sherman opined that O. was at high risk of future contact with the criminal justice system. This Court needs to understand the facts giving rise to this opinion, which undoubtedly included past involvement with the youth criminal justice system. And it goes without saying that to ensure that appropriate services for a child are in place under child welfare legislation, either in a settlement scenario or at trial, it is necessary to know what the child’s needs are.
[16] The question of whether O. should be found in need of protection under section 74(2) of the CYFSA remains outstanding. The standard of proof in this case is not the criminal standard of proof. Information about the child’s involvement in the youth criminal justice system, including the nature of the charges and the facts alleged to have been committed underlaying those charges, is squarely relevant in the Court’s determination about the claimed protection findings.
[17] In a scenario at trial where a finding is made and then an order as to disposition is determined, or in a scenario where leave to withdraw is pursued, the statutory best interest tests test in section 74(3) of the CYFSA will be engaged. Information about O.’s past and present involvement in the youth criminal justice system is relevant to a number of the statutory best interest criteria, including but not limited to how this Court will assess risk under sections 74(3)(x) and (xi).
[18] Finally, it is not just a criminal matter where Charter rights are at stake. In this case, one or both parents’, and the child’s s. 7 Charter rights are engaged: see New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (S.C.C.) ¶ 61. The principles of fundamental justice in child protection proceedings are both substantive and procedural in nature: see ¶ 70. This Court must ensure that it has the relevant evidence it needs, to make a proper determination about the child’s best interests, to avoid a Charter infringement: see ¶ 73.
[19] While the principles in section 3(1) of the YCJA are different from those of the CYFSA, I note they include encouraging young persons to have respect for societal values, and helping them to become full participants in society. Section 3(2) provides that that the YCJA is to be liberally construed, so as to ensure that young persons are dealt with in accordance with the principles set out in section 3(1). The YCJA and the CYFSA should be operating harmoniously in this case, not in conflict with one another.
C. The Privacy Protections in the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) In General
[20] As Abella J. wrote at ¶ 1 and 41 of R. v. D.B., 2008 SCC 25, “[y]oung people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit. They are decidedly but differently accountable.” Because of their age, young people have “heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability”. This presumption warrants the unique approach to punishment in the YCJA.
[21] This presumption is a principle of fundamental justice that is recognized by section 7 of the Charter. It was also incorporated into the text of the YCJA after R. v. D.B. in the preamble and in section 3, which sets out Canada’s policy with respect to young persons.
[22] This Court is well aware that children have heightened privacy rights. I had occasion to review the privacy protections in the YCJA in some detail at ¶ 69-93 of Toronto Community Housing Corporation v. R, 2018 ONCJ 492 (“TCHC v. R.”), while sitting as a family and youth court judge at the Ontario Court of Justice at 311 Jarvis Street, Toronto, Ontario.
[23] It is known that publication is widely understood to be harmful. As Abella J. held at ¶ 87 of R. v. D.B., publication makes the young person vulnerable to greater psychological and social stress. It renders the sentence “significantly more severe”.
[24] The fact that young persons are inherently vulnerable and have “heightened privacy rights” is not just a concept that is the sole domain of the youth court. These principles are protected across different areas of law.
[25] For example, the Supreme Court discussed this in A.B. v. Bragg Communications Inc., 2012 SCC 46, a case in which a 15 year old girl had been cyberbullied. At ¶ 17, the Supreme Court said:
17 Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child. As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 170-74.
[26] By way of another example, in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at ¶ 87, the Ontario Court of Appeal found that granting access to the Children’s Lawyer’s files would “seriously undermine the Children’s lawyer in her role as advocate for the child. Access would also sabotage the child’s heightened privacy rights, eviscerate the work of the Children’s lawyer and seriously limit the court’s ability to fully address the child’s best interests”.
[27] Finally, in another, different context, in L.S. v. B.S., 2022 ONSC 5796, this Court recently dealt with a children’s privacy rights in health and counselling records. This Court denied a parent access to certain of the children’s health and counselling records where to do so would be contrary to the child’s best interests, and where aspects of the records sought were not needed for the litigation before the Court.
[28] Returning to the context of records protected by Part 6 of the YCJA, in S.L. v. N.B., 2005 11391, the Ontario Court of Court wrote that the YCJA addresses the “pressing and unique concerns” that arise when young persons come into conflict with the law. That includes a comprehensive scheme respecting the access to youth records. The legislation demonstrates a clear intention to protect the privacy of young persons. But the privacy protections are not absolute. While protecting privacy, the legislation itself also provides that sometimes disclosure should be provided. In some instances, it is required.
D. There is A Difference Between Information, Publication and Access to a Record
[29] Part 6 of the YCJA serves at least two purposes. It protects young persons from the harms of publication. It also regulates the collection and subsequent use of certain kinds of records. But there are fundamental differences within Part 6 itself respecting the way the legislation treats information and records. There are differences between having information about a young person, publishing that information, and accessing records.
[30] A “record” is defined in section 2(1) of the YCJA. A record means any thing containing information, regardless of its physical form or characteristics, including a microform, sound recording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of the YCJA or for the investigation of an offence that is or could be prosecuted under the YCJA [my emphasis added].
[31] Different kinds of records are then defined in section 114 to 116. Only those in section 114 and 115 are engaged in this case.
[32] Section 114 provides for that a youth court may keep a record of any case that comes before it arising under the Act. These may be records relating to either pending or past charges. Without limiting the list of documents of this kind that may exist, there may be informations, synopses of the facts said to have occurred giving rise to any charges, notices to parent, orders for interim release or detention, a history of the proceedings before the Youth Court, and so forth.
[33] Section 115 provides that a police force may keep records that it creates in connection with an investigation or investigations resulting in charges. There may also be records of police involvement that do not result in charges, still captured by section 115. Sometimes, but not always, the latter will be records of extra judicial measures. These are captured by section 115(1.1).
[34] Extra judicial measures are defined in section 2(1). These are measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence and includes extra judicial sanctions.
[35] Finally, there may exist other police records that are not be captured by section 115 at all, and thus which do not attract any analysis under Part 6. For example, records of police contact with the parents in this case would not attract the application of Part 6.
[36] It is the publication of the identity of a young person that is specifically prohibited in section 110 of the YCJA. The prohibition does not depend on a person having first seen something in a record. Rather, section 110 says that subject to the limits in subsections (2) and (3), there is a prohibition against the publication of a young person’s name, or any other information related to him that would identify him as a person dealt with under the YCJA.
[37] Separately, section 118(1) deals with the use of records or the information contained therein. It provides that no person shall be given access to these kinds of records referred to above, and no information contained in a record 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 the YCJA. Records are controlled to prohibit the dissemination of identifying information and other details in the records in ways not otherwise authorized.
[38] But neither sections 110 nor 118 are absolute. There are exceptions made in the legislation.
[39] Just because some information may be contained in a record, does not necessarily mean that that cannot be referred to in child welfare proceeding, without first getting an Order from the Youth Court. This is so particularly where child welfare workers or others have knowledge of the information through means, other than through the review of a record.
[40] For example, youth court proceedings are not closed to the public. It is open to a child welfare worker, or any other member of the public for that matter, to sit in open court and listen to the proceedings. He or she would become aware of the name of a young person, the charges before the court, and perhaps a host of additional information. He or she can learn this information by attending court, but identifying information can not then be published by virtue of section 110.
[41] The subsequent filing of that information, for example in the affidavit of a child protection worker in a child protection proceeding, is not publication of the kind prohibited by section 110(1) of the YCJA. Nor does it violate section 118. Child protection proceedings are private: see section 87(4) of the CYFSA. Just like under the YCJA, there is a statutory publication ban covering child welfare proceedings. Section 87(8) of the CYFSA prohibits the publication or making public of information that has the effect of identifying a child who is a witness at or a participant in a child welfare proceeding, and it similarly protects parents, foster parents and members of the child’s family.
[42] And even if a child protection worker’s disclosure of what she learned through some other means was a violation of section 110(1), section 110(2)(c) authorizes the publication in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.
[43] This distinction between the use of information otherwise acquired, and access to a record, was dealt with comprehensively by Justice Sheilagh O’Connell in Native Child and Family Services of Toronto v. K.G., 2019 ONCJ 457. Notably, O’Connell J. is an experienced family and youth court judge in the Ontario Court of Justice at 311 Jarvis Street in Toronto, a court that for now has concurrent jurisdiction over both child welfare and youth court matters.
[44] In NCFS v. K.G., O’Connell J. was faced with an application from the OCL to strike a number of paragraphs of the worker’s affidavit, as no order under the YCJA had been obtained for the release of records. The OCL also asked the Court to reconstitute itself as a Youth Court, to address any issues arising under Part 6 of the YCJA, if necessary.[^1]
[45] As O’Connell J. wrote, NCFS had an extensive history with the family dating back to 2004. The details of that history, and of the child’s recent criminal charges, are set out at ¶ 6-27. Two points in O’Connell J.’s factual narrative are key. First, some of the charges were still pending and had not been disposed of [my emphasis added]: see ¶ 55, 60. I address the import of this later.
[46] Second, O’Connell J. found that the information in the affidavits “was largely within [the workers’] personal knowledge as either one or both workers attended numerous youth court justice appearances” with the child. So had the mother: see ¶ 28.
[47] In the end, O’Connell J. declined to strike any portions of the affidavit and she found it was not necessary to reconstitute as a Youth Court. At ¶ 47-63 she wrote:
(a) NCFS had not violated the non-publication section 110 of the YCJA, because child protection proceedings are private;
(b) The child’s right to privacy is protected at all stages of child protection proceeding;
(c) The agency was not seeking access to the records. Rather it was relying on information it already had in its own records, based on its personal knowledge and involvement in the child protection investigations and proceedings, and because of the workers’ attendances at various youth court appearances; and
(d) This information recorded in NCFS files’ did not make its files a “record” within the meaning of section 2 of the YCJA, since NCFS’ documents were not created for the purposes of the YCJA.
[48] In the alternative, O’Connell J. found that NCFS was entitled to access information in the youth records by virtue of section 119(1)(n) of the YCJA.
[49] O’Connell J.’s analysis was adopted by the Nova Scotia Court of Appeal in E.M.Y. v. Nova Scotia (Community Services), 2020 NSCA 46 ¶ 95-97.
[50] There is a more recent, conflicting decision on this point, in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A., 2021 ONCJ 188. In that case, a children’s aid society had in a court application referenced information relating to YCJA involvement, without having first obtained an order from the Youth Court.
[51] The Court distinguished O’Connell J.’s decision based on section 129 of the YCJA. Section 129 provides that no person who is given access to a record or to whom information is disclosed under the YCJA shall disclose that information to any other person unless the disclosure is authorized under the YCJA [my emphasis added]. The Court was of the view that section 129 therefore required the Society to obtain an order under section 119(1)(s) or section 123(1) of the YCJA permitting it to use the information in the proceeding before the Court.
[52] With all due respect to the Court in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A., the analysis in the decision does not address that:
(a) O’Connell J. found that the NCFS workers had information via other means, not because of the operation of the YCJA. As such, information was not disclosed to them “under this Act [the YCJA]” thereby triggering the restriction in section 129;
(b) Even if the YCJA applied, O’Connell J. still found that the children’s aid society had a right of access under section 119(n). Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A. does not address that; and
(c) The decision in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A. does not discuss that a right of access implies a right to use it for a certain purpose, without violating section 129: see M. (R.) v. R., 2011 ONCJ 143.
[53] With respect to the Court in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A., I prefer the reasoning of O’Connell J., and that of the Nova Scotia Court of Appeal, which followed her analysis. I will adopt O’Connell J.’s approach in this case.
[54] But O’Connell J.’s decision can only go so far to assist DBCFS. While it may be that DBCFS, like NCFS in NCFS v. K.G., obtained information from other sources, I do not know the extent of that. I do not know whether a DBCFS worker attended at youth court appearances, like NCFS workers did in the case before O’Connell J. My concern is that at some point, the line upon which information obtained from another source versus from sources that are captured by the YCJA’s privacy provisions can become blurred.
[55] If an order granting it access for this case is not made, it will become very cumbersome, for DBCFS, the parents and ultimately this Court, to parse through what may be properly put before the Court, and what may not. DBCFS or the parents may risk violating the statute, unintentionally. And in the result, there is a risk that important information may be withheld from the Court. Obtaining an order from the Youth Court is clearly the most prudent, and efficient way to proceed.
E. The Considerations on a Records Application Under Section 119 of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html)
[56] Section 119(1) lists various persons or members of a class of person who have access to records kept under sections 114 to 116. The right to access under section 119 is either mandatory, or discretionary, depending on the kind of records sought.
[57] Sections 119(1)(a), (b), (e) and (n) provide that the young person, the young person’s counsel or representative, his parents, but only during the course of any proceedings and then during the term of any youth sentence made, and a child welfare agency engaged in the supervision or care of the young person or in a child welfare investigation, have a mandatory, statutory right of access to youth court records kept under section 114, specifically youth court records, on request.[^2] Those same persons have a right of access to police records under section 115, but the right is discretionary.[^3]
[58] Additionally, section 119(1)(s)(ii) provides for access to others, not otherwise specifically listed in section 119(1). There is a test set out in section 119(1)(s)(ii). For a youth court judge to make an order under section 119(1)(s)(ii), he or she must be satisfied that the person has a valid interest in the record, to the extent he or she directs, and if access is desirable in the “proper interest of justice”.
[59] These rights of access in section 119(1) run from the date a record is created until the end of an applicable period set out in section 119(2). Section 119(2) refers to these time frames as “period[s] of access”. The length of time of the access period depends on the disposition of a matter. Once the particular access period expires, it is not that there can be no more access. Rather, access may be sought under section 123, but the applicable test is more onerous.
[60] DBCFS most recent potential change in position about its ability to seek access to the records is based on the fact that nothing in section 119(2) specifically provides for a “period of access” to a record relating to a pending charge. This is a particular interpretation of the legislation that seems to have been taken in R. v. O.Y., 2020 ONCJ 466, albeit the Court’s comments on that point were obiter.
[61] In R. v. O.Y., the accused, an adult, was facing assault and sexual assault charges against his former partner. Their child, V.K. had in the past been a complainant in a sexual assault investigation wherein the suspect was another youth. O.Y. sought access to certain of those records to challenge her credibility in the case against him.
[62] O.Y.’s application was brought under section 119(1)(q) of the YCJA. Section 119(1)(q) is a different provision which enables an accused to seek access to make full answer and defense. Alternatively, he sought access under section 123.
[63] The Court found that there was no right of access and dismissed the application.
[64] In my view, the facts of R. v. O.Y. are distinguishable. R. v. O.Y. did not concern a request for records of a young person who herself was the subject of a police investigation or charges. Rather, the records sought were those wherein V.K. was the alleged victim of a past crime, while still a young person.
[65] Second, while the Court in R. v. O.Y. ruled at ¶ 18 that that the records sought were captured by section 115 (police records), the Court went on to write that sections 119(1)(a)-(j) of the YCJA only provided access to records where charges had been laid. The Court then seems to have imported that requirement into section 119(1)(q) by analogy.
[66] I do not necessarily read section 119(1)(a)-(j) as only allowing access to records for which charges have been laid. As one example only, section 119(1)(e) specifically indicates that a parent’s right to records applies during the course of any proceedings or during the term of a youth sentence. There is no similar language in section 119(1)(a), (b), (c), (d), (g)(i), or (j) that necessarily requires there to have been charges laid, before there is a right of access. Even if I am wrong in this respect, in this case before me, it is my understanding that many of the records sought by DBCFS pertain to charges that were laid in any event.
[67] The Court in R. v. O.Y. then went on to state that there was no right of access under section 119(2) either, where charges are laid but remained outstanding: see ¶ 15. These comments in the decision are entirely obiter since the records sought in R. v. O.Y. did not pertain to charges that had ever been laid. There is then no analysis in the decision as to why section 119(2) should be interpreted in this way.
[68] That particular interpretation of sections 119(1) and (2) is directly in conflict with O’Connell J.’s ruling in the NFCS v. K.G. decision. Not only is the NCFS v. K.G. decision more squarely on point to the facts before me, in that it involves important considerations about the interaction between child welfare and youth court matters, but the Court in R. v. O.Y. neither referred to it, nor attempted to reconcile the two decisions.
[69] In cases where a child is involved in both the child welfare system and the youth court system, there needs to be coordination to meet the objectives of both the YCJA and the CYFSA. At ¶ 56-57 of NCFS v. K.G., 2019 ONCJ 457, O’Connell wrote:
[56] The information regarding I.G.’s ongoing youth criminal justice involvement is therefore necessary and relevant to the issues central to the child welfare proceedings: the determination of whether I.G. is a child or youth is in need of protection and if so, what plan of care is in I.G.’s best interests.
[57] Indeed, the federally and provincially funded “Cross-Over Youth Project” was designed to help prevent youth in care, from “crossing over” into the youth criminal justice system, in part by attempting to break down the “silos” between the child welfare and youth criminal justice systems. The goal of the project is to create better outcomes for these marginalized youth, many of whom “cross-over” as a result of their history of trauma and of being in care.
[70] More specifically, at ¶ 60 and 61 of NCFS v. K.S., O’Connell J. noted that while some of the charges were only recently resolved, and others remained pending. At ¶ 60 she held that section 119 would apply “as access to those youth records and information [of charges recently resolved and still pending] remain open”.
[71] The interpretation of section 119(1) and (2) from R. v. O.Y., if applied in the context of this case, would require this child welfare agency to wait until the end of a youth case. During the lifespan of this case, it is my understanding that charges have accumulated, something that is not uncommon for young persons caught up in both systems. Waiting would hamstring the agency’s ability to support the child while the charges are pending, because it may not have a mechanism to know about the details. It would also jeopardize the Court’s ability to strive to adhere to timelines in child protection legislation. I already addressed the need to avoid further delay in the August 5, 2022 Decision. Several child protection decisions have held, in general, that child protection cases do not go on hold while awaiting the outcome of criminal cases: see for example Child and Family Services of Toronto v. P. (S.), 2009 ONCJ 473 and the cases cited therein.
[72] Similarly on this point, it is my view, that the approach taken in O’Connell J.’s decision is the preferable one. The most simple reading of the provisions is that the clock has not even started to run yet.
[73] Otherwise put: access under section 119 begins when the record is created, not when the case is disposed of. Access ends at the completion of the applicable access period.
[74] Finally, the Court in R. v. O.Y. observed that some decisions had found that where there is no access period listed in section 119(2), the gap may be filled by applying the more onerous test in section 123: see for example R. v. B.(J.), 2008 ONCJ 208; see also R. v. Greer, [2020] O.J. No. 512. But the Court then noted that there is conflicting case law on this point: see R. v. A.B., [2015] O.J. No. 7113; see R. v. C.M., [2010] O.J. No. 3981; see R. v. Goulbourne, [2010] O.J. No. 3589; see R. v. Gure, [2019] O.J. No 4304; and see also R. v. R.L., [2008] O.J. No. 366. The Court agreed with the latter line of authority.
[75] I tend to agree with this aspect of R. v. O.Y. on this narrow point about section 123. In this case, applying section 123 to an application for access to records relating to pending charges would create an absurd result. The Court would have to apply the test in section 123 for now. Then the Court would apply the more relaxed provisions in section 119 once the charges are resolved, only to resume the more onerous test in section 123 at some point in the future, once the access period ends. There is no support in the overall scheme of the legislation to apply a more onerous test for access to records closer to the event in question, with a more relaxed regime to follow later, to then revert to the more onerous test in section 123.
F. Unintended Consequences
[76] This Court intends to point out the unintended impact of DBCFS’ inability to get an order for access to the records on this case, to date. I will give only three examples.
[77] First, at the appearance before me on October 28, 2022, and at other appearances in the past, each of the young person or one, if not both of the parents were aware of the nature of O.’s run-ins with the police, and pending criminal charges. That is because they either have a right to this information under the YCJA, or because they were also involved in some fashion in the encounter, or both. DBCFS workers had some information about what had transpired, as a result of their work with the family. Yet were the interpretation from R. v. O.Y. to prevail, this Court would not be entitled to know what everyone else seems to know, hindering this Court’s ability to discharge its statutory mandate under the CYFSA and to manage the case under the Family Law Rules.
[78] Second, I am already independently aware that O. is facing new charges before the Youth Court, because in the August 5, 2022 Decision, I ordered that O. come to Court for the October 28, 2022 event in this Court. I was later asked to sign an Order to compel his attendance, since he is detained. But if the interpretations in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A. and R. v. O.Y. to stand, I am not allowed to know why he is detained.
[79] Third, at the outset of the appearance on October 28, 2022, it was brought to my attention that in the youth matter, there is some restriction in place on O. and his father’s ability to communicate. A discussion then ensued about whether the restrictions prohibited father and son from being in Court together that day. I received confusing and not entirely clear answers to my questions about the nature of the restrictions. In the end, I did the best to ensure compliance by directing that they sit apart in the court room. The parties did not share a copy of O.’s bail with me, for fear of violating the YCJA. Certainly, this Court must not be left in the dark to the point that it cannot in the control of its own process ensure that Orders of another Court are respected. This could have been easily avoided.
G. Conclusions
[80] As this Court is not a designated Youth Court, it cannot make an order for access to records under Part 6 of the YCJA. Only the Ontario Court of Justice may do so. But I can clearly articulate that information and records are required for the next steps in this case. I can express that the Court should not have to amend its trial directions again. I can express that the Court adjourned the trial again, despite its comments about delay in the August 5, 2022 Decision, in part because the issue remains outstanding.
(1) Conclusions About Access to Youth Court Records
[81] In summary, it is my view that pursuant to section 119(1)(a), (e), and (n), the young person, the parents and DBCFS all have a right of access to youth court records as defined in section 114, even if there are only pending charges.
[82] If any of O.’s charges were resolved, then there will be a period of access in section 119(2). If it has expired, the test in section 123 applies. Either way, the records are required for the reasons already articulated.
[83] In making an order for access under the YCJA, the Youth Court has the implied power to specify that a children’s aid society may use the records in the discharge of its statutory duties under the legislation and in this litigation. That might include authorizing DBCFS to provide information and copies of the documents to the parents, their counsel, counsel for the child, which its Charter informed disclosure obligations require it to do in child protection cases. That might include providing information and copies to amicus, and to this Court. That is what is necessary to enable there to be meaningful case management, and fulsome evidence at a future hearing in this case: see again M.(R.) v. R. ¶70-74.
[84] Or, the Youth Court could also order that records be lodged with this Court. It could empower this Court, which already knows of the scope relevance in these child protection proceedings, to decide the extent of productions and to impose further conditions on their use: see the Ontario Court of Appeal’s decision in S.L. v. N.B. ¶ 52.
(2) Conclusions About Access to Police Records
[85] It is my view that access to any police records relating to any resolved or pending charges may be granted under the same provisions. Likewise, assuming a period of access has not expired respecting any already resolved charges, then section 119 applies.
[86] As set out earlier the operation of section 119 respecting police records is discretionary, again given the use of the word “may” in section 119. Discretionary decisions must be exercised judiciously. In my view, the test in section 119(1)(s) provides a helpful guide to the exercise of discretionary for the release of these kinds of police records.
[87] That test requires the Court to determine that there is a valid interest in the record, and that access is desirable in the proper administration of justice. By already legislating, through section 119(1)(n), that DBCFS may have a right of access to such records as a child welfare agency involved in the child’s supervision and care, Parliament has already recognized that a child welfare agency has a valid interest in records. Alternatively, if that cannot be presumed, then it would be my view that DBCFS has a valid interest in the records under section 119(1)(s) for those exact reasons.
[88] Although in the result of TCHC v. R., 2018 ONCJ 492, I denied TCHC access to records on the facts, I considered the principles of the YCJA, whether harm to a child would be occasioned, and whether access furthered the objectives for which TCHC said it was pursuing the records when considering whether access was desirable in the proper interest of justice. It is my view in this case that access actually prevents harm to a child, because it enables DBCFS and the Court to discharge their statutory mandates. Access enables this Court to complete the case management of this case, and to hold a trial. It also contributes to this Court being able to make a proper decision about this child’s best interests, which in turn ensures that the section 7 rights that are engaged in this proceeding are respected. Such a result would be harmonious with the objectives of the YCJA, not in be conflict with them.
(3) Conclusions About Access to Police Records of Extra Judicial Measures
[89] If any of the police records that exist pertain to extra-judicial measures, it may be that access cannot be ordered as a result of section 119(4) of the YCJA. The Youth Court will have to decide if this is so, also.
(4) Conclusions About Access to Police Records That Neither Relate to Pending Charges Nor Which Are Extra Judicial Measures
[90] The case law about this is also conflicting. The Youth Court will have to decide whether it believes it has jurisdiction to grant an order for access to this kind of record, or not. If the Youth Court finds that it has no jurisdiction under the YCJA to address these or other records, then there may still be jurisdiction in this court to make a production order: see R. v. C.M., [2010] O.J. No. 3981; see R. v. A.B. ¶ 21; see also R. v. O.Y. ¶ 23. But according to the Court in R. v. O.Y., this Court would then have to engage in a “full consideration of the provision and principles of the YCJA, the privacy interests of the witnesses and the Applicants right to make full answer and defense.”
(5) Conclusions About Access to Other Police Records
[91] Finally, there are likely other police records that are not captured at all by the YCJA. For example, as set out earlier, there may have been police involvement with the parents. If it wishes, DBCFS may move for production of these records before me on notice to the relevant interested persons.
PART IV: OTHER ISSUES
[92] At ¶ 184(i) of the August 5, 2022 Decision, I granted leave to DBCFS to amend its protection application, again, to claim a finding pursuant section 74(2)(j) of the CYFSA. While it did amend to claim this, it also amended to the length of proposed disposition of Interim Society Care, to shorten it from six months to two months. Counsel explained that she did so as the November 2022 trial approached, given the child’s recent criminal charges and his uncertain status. Although not pleaded, DBCFS also proposed that the matter might proceed by way of summary judgment motion.
[93] It makes no sense for there to be a trial for a two-month Order, which if granted, would almost immediately have to be reviewed in a Status Review proceeding. If DBCFS felt it could not proceed to trial in November because of the uncertainty, then the preferable remedy was to seek an adjournment. As a result of the adjournment being granted, the issue is now moot. I am not prepared to schedule a summary judgment motion. I have already set out how this case will be tried, if this matter does not settle.
[94] At counsel’s request, I will grant DBCFS leave to amend its application again to address this issue about disposition. I would remind the parties that the Court is not necessarily bound by the pleadings as to disposition, if a finding is made. The parties should be proceeding to trial on the basis that all dispositional options, and the other options flagged in the August 5, 2022 Decision, are on the table.
[95] DBCFS’ trial record contains errors. The August 5, 2022 Decision already contains directions about this. For further clarity, the trial record should only contain the pleadings, the Endorsements, and any other documents required by the rules. All other documents should form part of an Exhibit Book.
[96] One of the Endorsements that DBCFS filed in the Trial Record is a Trial Scheduling Endorsement Form. That form has never been completed with the Court, for the reasons explained in the August 5, 2022 Decision. Unless and until it is, it should not be included in the new trial record.
[97] At paragraph 184(m) of the August 5, 2022 Decision, I directed that DBCFS prepare some of its evidence for trial by way of affidavit and that the evidence be trial worthy only. DBCFS included in the trial record a number of past affidavits from these proceedings. Relying on past evidence from the continuing record is not what this Court ordered, nor is it necessarily trial worthy.
[98] It is also not reasonable to expect the trial judge to piece together the evidence from various affidavits filed over time, which do not necessarily have the complete account. While affidavits prepared for prior steps in the case may be used during cross examination, they are not trial affidavits to be used as a substitute for examination-in-chief. DBCFS is not to include those affidavits in the revised filings. As ordered in paragraph 184(m) of the August 5, 2022 Decision, DBCFS is to prepare fresh trial affidavits containing all of the evidence it intends to rely upon. These should go into exhibit books.
[99] DBCFS prepared a draft Statement of Agreed Facts. It also contained a two-month disposition, which is not appropriate for the reasons already expressed. Nevertheless, it remains the Court’s hope that the finding will now be resolved.
[100] The OCL pointed out a number of omissions in the facts portion of the draft SAF. O.’s counsel also said that O. is not prepared to consent to a SAF. Regardless, it would be most helpful if a new draft SAF was prepared to address the finding, that addressed the OCL’s concerns. Maybe if everyone else approved it, O. might be prepared to sign it, or at least he would not oppose it.
PART V: SHOULD THERE BE ANOTHER SETTLEMENT CONFERENCE?
[101] At times during the October 28, 2022 conference, it appeared that there might be some willingness to resolve this case. O. expressed to the Court his desire to remain in Oshawa.
[102] This Court was given some information that there may be an option for O. to remain where he currently is, while attending school and receiving other supports. Both DBCFS and amicus are continuing to put together a plan with services, based on Dr. Sherman’s report. To the extent that this has not already been done, a copy of Dr. Sherman’s report may be released to any potential service providers who are contacted with a review to being engaged in this case. I make this order pursuant to section 98(8)(g) of the CYFSA.
[103] Both the OCL and amicus asked this Court to convene another conference. The OCL suggested a conference under section 19 of the YCJA. The OCL has raised this at least once before in this proceeding.
[104] The OCL did not ask that I convene the section 19 conference, as I cannot do that. Counsel asked that I recommend in this ruling that one occur. I have no authority over matters in the Youth Court. Still, this Court is aware that in other jurisdictions, like at the Ontario Court of Justice at 311 Jarvis Street, where the Court has concurrent jurisdiction over child welfare and youth court matters, the judges of that Court developed practices over time to ensure betters outcomes for young persons caught up in both systems. Pilot projects were also put in place for a time, in other areas of Ontario.
[105] That special approach to youth criminal justice and child welfare, recognizes that planning in the youth court is geared towards addressing accountability in the short term, whereas planning in child welfare often operates in the longer term. A single judge operating in both systems is naturally able to craft a more optimal result in both cases. The outcome in the criminal process should support the process in the child welfare system. O’Connell J. referred to this approach to youth criminal justice and child welfare in NCFS v. K.S.
[106] While I cannot convene a section 19 conference, counsel are free to craft a creative process. I think it is an excellent idea. For example, it is open to counsel for DBCFS, the OCL or even amicus, to request a section 19 conference occur in the Ontario Court of Justice. If there is to be a such conference, in addition to the usual participants in the youth court system, I would suggest that counsel for DBCFS and the worker, the OCL and amicus attend. The parties may also wish to invite Dr. Sherman, as well as the gentleman from the open detention facility in which O. is currently housed, who attended Court with O. on October 28, 2022, and who spoke about the placement that might be available to O. there.
[107] Regarding whether I might attend a section 19 conference, I would have to be invited by the Ontario Court of Justice. I also require additional submissions about the legalities and the parameters of this, including the extent to which the conference may be reported back in a conference setting in the child welfare matter. That said, my attendance may be less important that the attendance of those referred to above. If amicus is invited, she can voice information about the kind of terms that this Court might require or find helpful to aid in a resolution of the child welfare matter. If there are then any resolutions in the Youth Court matter, this Court may be able to build off them when the family proceeding resumes. Of course, an order would have to be obtained so that any outcomes in the Youth Court can be shared in this proceeding.
[108] Alternatively, I am prepared to have a further settlement conference in this child protection proceeding and invite the Crown and defence counsel, if they are willing to participate. But again, this kind of conference can only take place on consent, and the parameters around the use of any information shared in the discussions would have to be strictly agreed to in advance.
PART VI: ORDERS
[109] I make the following Orders:
(a) The trial in this matter shall now proceed on the May, 2023 sittings, if this matter does not resolve beforehand;
(b) DBCFS has leave to serve and file a further amended protection application on or before March 17, 2023;
(c) The two copies of the trial records filed by DCBFS shall be removed from the file and returned to DBCFS. DBCFS shall file new trial records, and separate exhibit books for the affidavits and any other documents, that comply with the requirements of the August 5, 2022 Decision, the Family Law Rules, and this decision;
(d) For clarity, there are no page limits on DBCFS’ affidavit evidence for trial, but DBCFS should strive to keep the length to a reasonable number of pages;
(e) DBCFS shall serve and file that material on or before March 17, 2023;
(f) The parents have leave to file Amended Answers and Plans of Care on or before April 17, 2023;
(g) The Order previously made requiring that O. be brought before this Court shall continue to apply for all future court appearances in this matter, until this matter is resolved;
(h) DBCFS and amicus shall continue to put together plans for services for O. To the extent that this has not already been ordered, a copy of Dr. Sherman’s report may be released to any potential service providers who are contacted with a view to being engaged in this case. I make this order pursuant to section 98(8)(g) of the CYFSA;
(i) This matter shall return before me on December 5, 2022 @ 9 AM by zoom. O. may participate at that time if he wishes. The purpose of the attendance is to update the Court about the progress of this matter, whether they have a consensus about how a further conference might proceed, and scheduling; and
(j) Depending on what transpires, this Court will schedule the next event in this case to proceed in person. At some point prior to the spring 2023 sittings, there will need to be a final date to complete trial management, and to address any outstanding matters referred to in the August 5, 2022 Decision, as modified by this decision.
[110] I thank all those in attendance on October 28, 2022 for their participation.
Justice Alex Finlayson
Released: October 31, 2022
DBCFS v. L.S.K. and B.C.F., 2022 ONSC 6176
COURT FILE NO.: FC-20-20-0000
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dnaagdawenmag Binnoojiiyag Child & Family Services
Applicant
- and –
L.S.K.
Respondent mother
- and –
B.C.F.
Respondent father
REASONS FOR DECISION
Justice Alex Finlayson
Released: October 31, 2022
[^1]: In Toronto, where O’Connell J. sits, there is no unified Family Court. The Ontario Court of Justice there has jurisdiction over both child welfare and youth criminal justice. A request, like the one made in NCFS v. K.S., that the Court reconstitute itself, could not be entertained by this Court, as the Youth Court is in the Ontario Court of Justice in this jurisdiction, and child welfare is dealt with in the Superior Court.
[^2]: The right to access youth court records is mandatory since section 119 uses the word “shall” for these records.
[^3]: The right to access police records is discretionary since section 119 uses the word “may” for these records.