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Criminal - Youth Criminal Justice Act (YCJA) (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".
Here the court considers (largely on the evidence before it, not the law) whether the media parties were required to make formal YCJA s.119(1)(s) application ['Persons having access to records'] to obtain records, or whether such records could be released less formally:(3) The YC judge did not err in finding that the appellants were required to make an application on notice for access under s. 119(1)(s)
[88] The YC judge held that, to obtain access to records under s. 119(1)(s), an applicant must make an application on notice to the Crown and the Young Persons. The appellants say that requiring them to make a formal application is inconsistent with the wording of s. 119(s) and that it renders access unnecessarily complicated and impractical. I do not agree.
[89] In my view, the requirement for an application, whether oral or in writing, is plain on the wording of s. 119(1)(s). Section 119(1) states that “the following persons, on request, shall be given access to a record…” This language must, however, be read harmoniously with the text of subpara. (s), which confers a judicial gate-keeping role for the purpose of determining whether access should be granted and on what terms. This mandates a motion or application as opposed to an administrative process. The language of subpara. (s) stands in contrast to the language of subparas. (a) through (r), which does not refer to any determination by a judge as a precedent for access.
[90] In S.L. v. N.B., at para. 51, Doherty J.A. stated that s. 119(1)(s) “allows any person, including the victim, to bring a motion before a youth justice court judge for an order allowing access to any of the records made and kept under the Act.” He later suggested, however, that a person could first request access to the records in the court and in the possession of the Crown Attorney. The latter comment was obiter. I agree with the YC judge and the SC judge that s. 119(1)(s) is premised on a motion or application on notice.
[91] Courts in Ontario and elsewhere have consistently required that the Crown should be given notice of s. 119(1)(s) applications for access: see R. v. M.M., at para. 29; Toronto Star Newspaper Ltd. 2012, at para. 2; D.C.F., Re, at p. 259. They have also required that notice should be provided to young persons whose privacy rights are at issue in YCJA proceedings: see Toronto Star Newspaper Ltd. 2012, at para. 2; Toronto Community Housing Corporation v. R., 2018 ONCJ 100, at paras. 15-17; and Boyer v. Doe, 2017 ONCJ 272, [2017] O.J. No. 2188, at para. 9. A notice requirement is consistent with the YCJA underlying policy of protecting the privacy of young persons and the recognition that stigmatization of young persons charged with offences may greatly reduce their potential for rehabilitation. As noted by Binnie J. in F.N., the disclosure of information in YCJA records may have a profound and lasting negative impact on a young person. In response to an application, a young person has an opportunity to communicate any circumstances that may make them particularly vulnerable to inadvertent identification, and the Crown has an opportunity to advise the court of any other circumstances that may weigh in favour or against access.
[92] Finally, the appellants complain that requiring them to seek access by way of motion or application is unduly burdensome and may lead to delays in obtaining information in a timely way. This same argument was raised and rejected in S.L. v. N.B., at para. 56:Counsel for the respondents argue that the interpretation of the Act advanced by the Attorney General creates practical problems, adds procedural hurdles for plaintiffs like the respondents, and increases the costs associated with litigation. Even if I agreed with this submission, it could not alter the intention of Parliament as expressed in the clear language used by it. In any event, I do not agree that the interpretation I favour creates significant practical difficulties. [93] The appellants’ concerns about delay are speculative and not borne out on the facts of this case. They served their application on December 30, 2023; it was heard two weeks later. They obtained an order granting them partial access to the Records less than a month after the Young Persons’ first court appearance. Based on the evidence of Ms. Chiasson, the order gave the appellants access to all information and Records that she needed for fact-checking purposes at the time, given that media had attended all hearings except that on December 28, 2022. Immediate access to further information would not have served any purpose, since media representatives were not entitled to disclose the Young Persons’ names or identifying information under the Act, and a s. 517 ban prevented publication of the evidence at the bail hearings and a court’s reasons for granting or denying bail. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of statutory 'open court' orders, 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 contrasts statutory aspects of the YCJA regime (which are akin to 'open court' orders), with the actual common law 'open court' orders:(a) The distinction between a limitation to access under common law and a limitation pursuant to valid statutory enactment
[42] The appellants contend that, further to the open court principle affirmed in Dagenais, Mentuck and Sherman Estate, a court has only a limited discretion to make any order to limit the media’s access to court records and ability to report on their contents. The appellants argue that the courts below erred by failing to apply the Dagenais-Mentuck test, rather than the criteria set out at s. 119(1)(s) of the YCJA, to determine whether the appellants should have access to the Records. They contend that the YC judge’s interpretation of the Act “reverse[s] the open court principle”.
[43] The appellants’ argument fails to recognize the distinction between the exercise of a discretionary judicial power in common law and the application of a statutory exception. Rather than reversing the open court principle, the interpretation by the courts below respects an exception to it created through valid legislative enactment.
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[48] The Dagenais-Mentuck test is subject to an important qualification, however. It ensures that the open court principle is respected where a party asks a court to limit access to hearings or court records through the exercise of the court’s inherent discretion to manage its own proceedings. It does not displace or negate the effect of a statutory exception to the open court principle. As held in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22, and reiterated in Sherman Estate at paras. 38 and 40, the test “applies to all discretionary limits on court openness, subject only to valid legislative enactments”. The constitutionality of such an enactment may be challenged. In that case, any limit it imposes on the open court principle must be shown to be a reasonable and justified limitation in a free and democratic society under the Oakes test: Sherman Estate, at para. 40, citing Dagenais, at p. 878, and Vancouver Sun, at para. 30.
[49] In the absence of a successful constitutional challenge, ss. 110, 118 and 119 of the YCJA remain valid legislative amendments.[2] As a result, the courts below were correct in finding that the appellants must meet the criteria set out in s. 119(1)(s) to obtain access to the youth records.
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