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Criminal - Youth Criminal Justice Act (YCJA)
MORE CASES
Part 2
. R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court' order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
The court canvasses some statutory aspects of the YCJA regime, which are akin to 'open court' orders:[7] The YCJA establishes the principles and procedures applicable to criminal proceedings against a young person “who is or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old”. Its preamble recognizes that “members of society share a responsibility to address the developmental challenges and the needs of young persons and to guide them into adulthood” and that “Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons”. The preamble disposes that “information about youth justice, youth crime and the effectiveness of measures taken to address youth crime should be publicly available”. At the same time, it recognizes that Canada is a party to the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and that “young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms”.
[8] Section 3(1), entitled “Policy for Canada with respect to young persons”, elaborates on the principles animating the YCJA. Subparagraph(1)(b) emphasizes that proceedings involving young persons are unique because youth have diminished moral culpability and a greater opportunity for rehabilitation. As a result, young persons are entitled to special procedural protections, including an enhanced right to privacy:3 (1) The following principles apply in this Act:
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(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time…. [Emphasis added.] [9] Like other criminal proceedings, youth court hearings are open to the public.[1] Persons who attend proceedings are at liberty to disclose the existence of the proceedings and most information about them. This means that, assuming no publication ban has been ordered in a specific case, the media may report on proceedings.
[10] Part 6 of the YCJA, however, presumptively restricts access to records of proceedings against young persons subject to the YCJA. It also prohibits disclosure of the names of such young persons, as well as names of victims and witnesses who are minors, and of information that could identify them. Even where a party is granted access to a record or information, their ability to disclose them is restricted and time limited.
[11] Section 110 of the YCJA provides:Identity of offender not to be published
110 (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. [12] Section 111(1) similarly bans the publication of the names and identifying information of witnesses and victims involved in YCJA proceedings who are minors. The persons whose identities are protected under ss. 110 and 111 may themselves choose to disclose their involvement when they are eighteen years old. A youth justice court may also permit publication on application under ss. 110(4) and (6) and s. 111(3).
[13] Records are broadly defined under s. 2 of the YCJA to include “any thing containing information, regardless of its physical form or characteristics … that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act”. Under s. 114, this includes a record of a case kept by a youth justice court, review board, or any court dealing with matters arising out of proceedings under the YCJA. Under ss. 115 and 116, the YCJA likewise applies to records kept by the investigating police force; by the RCMP in a central repository; by government departments and agencies; and by private persons and organizations involved in extrajudicial measures or administering youth sentences.
[14] Access to records subject to the YCJA is presumptively prohibited under s. 118(1):118(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. [15] Section 119(1) sets out exceptions to this general rule. Persons identified in ss. 119(1)(a) through (r) have a presumptive right to access, subject to certain conditions. These persons include the young person to whom the record relates; their counsel, parents, or an adult assisting them; the victim of the offence or alleged offence to which the record relates; the Attorney General; a peace officer; a judge, court or review officer; and representatives of various government institutions and agencies.
[16] Although a right of access under ss. 119(1)(a) through (r) is presumed, it is qualified. Some persons may only request access for limited purposes. Under subpara. (1)(g)(i), for example, a peace officer may only access a record as defined by s. 116 for law enforcement purposes or for “a purpose related to the administration of the case to which the record relates”, and then only “during the course of proceedings against the young person or the term of the youth sentence”. More generally, s. 119(2) limits the period during which access may be obtained under s. 119(1) from the date a record is made until the disposition of the proceeding or a punishment imposed on a young person is completed. For example, under s. 119(2)(h), if the young person is found guilty of an indictable offence and given a custodial sentence, access under s. 119(1) terminates five years after the sentence is completed. Once the applicable period for a right of presumptive access is over, access to a record can only be obtained through an order by a youth justice court judge under ss. 123, 124 or 126.
[17] Any person or category of person not listed in ss. 119(1)(a) through (r) may seek to obtain access to youth records under subpara. (1)(s), which along with the body of s. 119(1) reads as follows:119(1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection (2), the following persons, on request, shall be given access to a record ... .
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(s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that access to the record is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice. [18] No matter how a person obtains access, s. 129 provides that “no person given access to a record or information under the Act shall disclose that information to any other person unless the disclosure is authorized under the Act.” A person who contravenes s. 110 (the ban on the publication of a young person’s name or identifying information), s. 118 (the ban on access to records and information unless authorized) or s. 129 (the ban on subsequent disclosure) commits a summary conviction offence or an indictable offence carrying a maximum prison sentence of two years. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court' order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons":
Here the court examines (with approval: para 62) statutory YCJA 'open court' s.119 orders, particularly in light of F.N. (Re) (SCC, 2000):(b) The YC judge correctly interpreted the criteria applicable to an access request under s. 119(1)(s)
[50] The YC judge’s interpretation of s. 119(1)(s) is consistent with the language used by the legislator, the principles underlying the YCJA, and the Supreme Court of Canada’s analysis of a near identical provision in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880.
[51] The YC judge correctly noted that the regime under Part 6 of the Act is the only route to gain access to youth records. In her words, there is “no separate scheme for access to youth records, even when sought for civil litigation or private prosecution of by the media.” Part 6 of the YCJA contains a comprehensive statutory scheme designed to carefully control access to young offender records. As Doherty J.A. determined in S.L. v. N.B., 2005 CanLII 11391 (ON CA), 252 D.L.R. (4th) 508 (Ont. C.A.), at para. 54., “the language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the Act.”
[52] Section 118(1) provides that “[e]xcept as authorized or required by this Act, no person shall be given access to a record” as defined under the Act. There is no dispute that the Records are subject to s. 118(1). On its face, s. 119(1)(s) requires a party such as the appellants to persuade a Youth Court judge that (1) the person has a valid interest in the record sought; and that (2) access to the record is “desirable in the interests of the proper administration of justice”. It mandates not only a determination of whether access ought to be granted, but on what terms.
[53] The interpretation of s. 119(1)(s) by the YC judge and the SC judge is consistent with the Supreme Court of Canada’s interpretation of an almost identical provision in predecessor legislation, the Young Offenders Act, R.S.C. 1985, c. Y-1 (“YOA”). Parliament enacted the YOA in 1984. Like the YCJA, it prohibited the publication of the name of any young person subject to it as well as information that would identify them, and barred access to records generated in YOA proceedings, subject to exceptions set out in s. 44.1 of the YOA. Section 44.1(1)(k) of the YOA gave access to youth records to:(k) any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice. [54] In F.N., a young person objected to a Youth Court’s practice of routinely sending its dockets to local school boards for review by school psychologists. As a result of this practice, the young person’s name, the charges laid against him, and the time and place of his trial were disclosed to two school boards. The Supreme Court of Canada held that the Youth Court’s routine disclosure violated the YOA. The identification of the young person and the disclosure of information of youth court proceedings to the school boards in which the accused was involved was presumptively barred and there was no right of access absent a judicial order under s. 44.1(1)(k) specifying the extent of access granted.
[55] At the outset of his analysis of the governing principles regarding disclosure of youth records at para. 10 of F.N., Binnie J. recognized the importance of the open court principle but observed that it did not have an unlimited application:It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are a number of important exceptions where the public interest in confidentiality outweighs the public interest in openness. [56] He noted that youth courts are open to the public, and “their proceedings are properly subject to public scrutiny”; F.N., at para. 12. Under s. 38 of the YOA, the only “sliver of information” that could not be distributed or reported was the name of a young person charged or information that would permit their identification. In an earlier constitutional challenge, s. 38 had been found to infringe the right to freedom of expression under s. 2(b) of the Charter, but was held to be constitutional under s. 1: Re Southam Inc. and The Queen (1984), 1984 CanLII 2169 (ON SC), 48 O.R. (2d) 678 (H.C.), aff’d (1986), 53 O.R. (2d) 663 (C.A.), leave to appeal refused, [1986] 1 S.C.R. xiv.
[57] Binnie J. emphasized that the confidentiality provisions in the YOA were not only designed to protect young persons’ privacy but to enhance their potential rehabilitation and, in so doing, protect society at large. Relying on authorities such as the U.S. Supreme Court in Smith, Judge v. Daily Mail Publishing Co., 443 U.S. 97 (1979), at pp. 107-8 and N. Bala, Young Offenders Law (Concord: Irwin Law, 1997), at p. 215, he held at para. 14 of F.N. that:Stigmatization or premature “labelling” of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence. [58] Binnie J. also noted that the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the “Beijing Rules”), adopted by General Assembly Resolution A/RES/40/33 of November 29, 1985, were supported by Canada. The Beijing Rules provide that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.”
[59] Having reviewed the principles underlying the YOA’s limits on disclosure, Binnie J. concluded that routine disclosure of youth court dockets to school boards did not meet the criteria under s. 44.1(1)(k). The administrative practice of sending information about young persons involved in YOA proceedings plainly violated the bar on identification in the YOA. Such disclosure was not authorized by a judge and was particularly offensive since it was not limited to school boards responsible for the applicant young person. Furthermore, although school boards had a legitimate interest in knowing whether members of the student body presented a danger to themselves or others, they had “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”: F.N., at para. 35.[3]
[60] The appellants argue that F.N. is distinguishable from this case. First, unlike the school boards in F.N., media representatives do have a valid interest in the records at issue. Second, F.N. arose in the context of an administrative process whereby a Youth Court routinely sent records to third parties without consideration of whether the s. 119(1)(s) criteria were met in each case. The latter argument leads to an inconsistency in the appellants’ position: in asserting that media representatives should be entitled to obtain complete and unredacted youth court records from a courthouse employee without the need for a court order, they are advocating for the same sort of routine, non-judicially supervised disclosure regime rejected in F.N.
[61] In any event, the factual distinctions between this case and those in F.N. do not make that decision any less relevant to the issues on this appeal. Binnie J.’s analysis of the purpose and principles underlying the YOA and its provisions limiting disclosure and publication applies equally to the YCJA and its corresponding provisions. His finding that a party seeking access to YOA records under s. 44.1(1)(k) of the YOA must meet the dual criteria under that provision applies equally to a party seeking access under s. 119(1)(s) of the YCJA.
[62] The YC judge’s interpretation of the applicable criteria under s. 119(1)(s) of the YCJA is consistent with the wording of the YCJA and the reasoning in F.N. She correctly identified that the primary goal of the YCJA “is to limit the stigmatization that attaches to a young person who is being investigated by the police and is being accused of committing a criminal offence or has committed a criminal offence.” As she noted, this goal takes into account the diminished moral blameworthiness and culpability on the part of young persons based on their heightened vulnerability, lesser maturity, and reduced capacity for moral judgment, as required under s. 3 of the Act and recognized in R. v. B.(D.), 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 41.
[63] As well, as noted by the YC judge, “protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society”: R. v. C.(R.), 2005 SCC 61, [2005] 3 S.C.R. 99, at para. 42, and F.N., at para. 14, and the authorities cited therein. This protection is also mandated by Canada’s international obligations pursuant to the UN Convention on the Rights of the Child, which is specifically referenced in the preamble to the Act, and in the Beijing Rules.
[64] Beyond fostering the goals of avoiding stigmatization and therefore enhancing the potential for rehabilitation and society’s long-term interests, the protection of young persons’ privacy accords with our deepest values embodied in rights guaranteed under the Charter. As stated by Cohen J. in Toronto Star Newspaper Ltd. 2012, at para. 41:Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter. [65] This affirmation of the enhanced privacy rights of young persons as a core value was adopted by the Supreme Court of Canada in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 18. As stated again more recently in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 86, the fact that “Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children’s privacy”.
[66] Although the YC judge acknowledged the importance of the public access to court proceedings and the approach to limiting orders in Dagenais, Mentuck and Sherman Estate, she correctly held that the criteria explicitly set out in s. 119(1)(s) prevail. Like other courts who have considered this issue, she concluded that the Dagenais-Mentuck test must be considered through the lens of the YCJA and the principles enshrined in the Act to protect the privacy of youth: R. v. M.M., at paras. 33 and 34; R. v. G.D.S., 2007 NSCA 94, 226 C.C.C. (3d) 196, at para. 38; R. v. A.Y.D., at para. 23. Prohibiting or limiting access to youth records under the YCJA is not an act of judicial discretion described in Dagenais-Mentuck, but an order made based on weighing relevant factors pursuant to the comprehensive statutory regime for access set out under the Act.
[67] For these reasons, I agree with the SC judge that the YC judge correctly interpreted the applicable test under s. 119(1)(s).
(c) The YC judge considered all relevant factors in granting the appellants partial access to the Records
[68] In considering what access should be granted, the YC judge considered all relevant factors. Contrary to the appellants’ submissions on appeal, she gave due weight to the open court principle as a value “of paramount significance in the Canadian democracy.” She noted that media reporting is how the vast majority of Canadians see the judicial process at work. She recognized that the appellants are “established and reputable members of the media who are well aware of the legal prohibition on publishing the names of young persons in this case or any information related to the young persons if it would identify them.”
[69] On the other hand, the YC judge noted that the Young Persons were charged with a very serious offence, of which they were presumed innocent. In these circumstances:It is vitally important to the young persons in this case, as well as to the broader community, that the young persons’ right to a fair trial is protected.
If found guilty, the young persons will continue to have a privacy interest in their youth court records under the YCJA, however, while they are presumed innocent, their privacy interest is even more heightened. [70] The YC judge identified two further relevant factors. First, the appellants might inadvertently disclose information if they were given unlimited access to the records:[I]f the media is granted complete and unredacted access to the entire youth court file at [this] stage of the court process, which includes the names and dates of birth of all of the young persons involved, videos, surety declarations, including names and addresses of sureties and parents, there is a risk of inadvertent or accidental dissemination of any or all of this private information.
If this occurs, then the damage will be irreversible and cause irreparable harm, both to the young persons’ constitutionally protected privacy rights and their rights to a fair trial.
This risk is not speculative, but real, given the speed at which information travels in this digital age. [71] This concern about inadvertent disclosure is a valid consideration. As the Supreme Court recognized in Sherman Estate, at para. 80, where a court is considering whether to limit access to information that is highly private to an individual, “the seriousness of the risk may be affected by the extent to which information would be disseminated.” Justice Kasirer explained that:If the applicant raises a risk that the personal information will come to be known by a large segment of the public in the absence of an order, this is a plainly more serious risk than if the result will be that a handful of people become aware of the same information, all else being equal. In the past, the requirement that one be physically present to acquire information in open court or from a court record meant that information was, to some extent, protected because it was “practically obscure” (D. S. Ardia, “Privacy and Court Records: Online Access and the Loss of Practical Obscurity” (2017), 4 U. Ill. L. Rev. 1385, at p. 1396). However, today, courts should be sensitive to the information technology context, which has increased the ease with which information can be communicated and cross‑referenced (see Bailey and Burkell, at pp. 169‑70; Ardia, at pp. 1450‑51). In this context, it may well be difficult for courts to be sure that information will not be broadly disseminated in the absence of an order. [72] Although these observations were made in the context of discretionary exceptions to the open court principle, they apply equally to the weighing exercise under s. 119(1)(s).
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[76] The YC judge’s order was sensitive to the open court principle and the role played by the media in ensuring that the public has insight into court proceedings. She directed that the media would have notice of all future court appearances and set up a streamlined procedure to facilitate any future applications for access to Records. She specifically recognized that the appellants could renew their application for the bail hearing exhibits following the expiry of the s. 517 publication ban.
[77] I agree with the SC judge that the YC judge applied the s. 119(1)(s) test “in a careful and thoughtful manner”, balancing “the rights of the young person’s privacy against the [appellants’] rights to report on the judicial process in the most fulsome way possible.” Her analysis was appropriate to the circumstances of the case, the evidence before her on the application, and the stage of the proceedings. Her order gave the appellants access to the information and Records that they had shown was important to their ability to report at the bail stage while protecting the privacy and procedural rights of young persons charged with a very serious offence.
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(2) The YC judge correctly held that the appellants had the onus to show that access should be granted under s. 119(1)(s) of the YCJA
[79] The YC judge rejected the appellants’ submission that the media should have an unfettered right of access to youth court records unless the Crown can demonstrate otherwise. Notwithstanding the Dagenais-Mentuck test, the YC judge concluded that “in the context of youth criminal justice, it is clear that the media is not a class of persons listed as presumptively entitled to access to youth records under the sections 119(1)(a) to (r)” of the Act.
[80] The appellants renew this argument on appeal. They contend that the onus placed on them by the YC to satisfy the s. 119(1)(s) criteria “is illogical and unconstitutional where the media is the party seeking access”, because media access is axiomatically in the interests of the administration of justice. The appellants rely on the open court principle, on Canadian caselaw consistently recognizing that media representatives have a valid interest in records of court proceedings, and on the reference to a “request” in the body of s. 119(1).
[81] I do not find these submissions compelling.
[82] First, for reasons already canvassed above, the Dagenais-Mentuck test and its affirmation in Sherman Estate does not supplant the statutory regime in ss. 118 and 119 of the YCJA. The open court principle is a relevant consideration that should be given weight in determining whether a person should have access under s. 119(1)(s). As correctly found by the YC judge and SC judge, however, it is not the only valid consideration.
[83] Second, as noted at the outset, subparas. (a) through (r) enumerate persons who may request access to records subject to the YCJA. Media representatives are not included in this list. They implicitly conceded as much when they applied for access solely under s. 119(1)(s).
[84] The YCJA was enacted after Dagenais and Mentuck were released and has since been amended. In crafting s. 119(1)(s), the Federal Parliament was aware of the critical role played by the media in ensuring that courts are open to public scrutiny. Despite this, the legislator did not choose to give the media a presumptive right of access to YCJA records. The appellants have not pointed to any caselaw or governing principles that would justify reading in a presumption for access to youth records for media in s. 119(1) that the legislator has failed to enact.
[85] It is not even clear what specific persons or categories of persons the appellants propose should have a presumptive right of access under s. 119(1)(s). In oral argument, the appellants conceded that the term “media representative” is potentially very broad. They then suggested that “accredited media” should enjoy special status under the YCJA. This is an undefined term which could include, among others, foreign media representatives. This could be problematic as compliance with the non-disclosure and non-publication rules in the YCJA by foreign actors would be difficult or impossible to police.
[86] Third, although media representatives have consistently been held to have a valid interest in records of court proceedings, this is not the only criteria for access under s. 119(1)(s). A Youth Court judge must also be satisfied that access to a specific record by a specific person is desirable either “in the public interest for research or statistical purposes” or “in the interest of the proper administration of justice”. Even if they are satisfied, they may consider that access should be limited, as the YC judge did in this case. The determination of access under s. 119(1)(s) is made on a case-by-case basis. In F.N., Binnie J. rejected an interpretation of the “interest of the proper administration of justice” that would allow for a category of access not specifically carved out by Parliament, writing at para. 34 that “control subject to such a broad exception would in effect be no control at all and would render superfluous many of the other restrictions and protections carefully written by Parliament”. This reasoning has the same force now, under the YCJA, as it did under the YOA.
[87] I would accordingly dismiss this ground of appeal.
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