Young persons who engage with the criminal justice system are afforded significant privacy protections. Their identities are protected for life by a publication ban, and all youth records created as a result of any investigation into possible criminal conduct are subject to restrictions on who may lawfully access and distribute them. These protections are found in sections 110-129 of the Youth Criminal Justice Act.
Children who come into the care of a Children’s Aid Society are also afforded significant protections under the provisions of the Child, Youth and Family Services Act. Should it be determined that a child is in need of protection by a family court judge, an order may ultimately be made placing the child in interim or extended society care. As a result, a Children’s Aid Society becomes the lawful guardian of the child.
For young persons who become involved in both court systems, the lawful sharing or exchanging of information between them is often legally complex and fraught with the potential for errors.
For example, if during the course of its care for a child, a Society becomes aware of the child’s involvement with the youth criminal justice system, what uses, if any, can the Society make of that information in future court proceedings?
In Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A., 2021 ONCJ 188, the Children's Aid Society of the Districts of Sudbury and Manitoulin (referred to as the “Society” by the court’s judgment) brought an application for secure treatment with respect to the child A.A. Within the Society’s application materials were references to A.A.’s prior involvement with the youth criminal justice system. No prior youth court order had been obtained granting the Society lawful authority to disseminate those materials further.
Justice Buttazzoni had to determine whether or not the Society could lawfully reference information relating prior youth criminal justice system involvement by A.A. without first having obtained a youth court order. The Office of the Children’s Lawyer argued the Society required such an order; the Society argued it did not, as the information had been obtained during their involvement with the child as his legal guardian.
The Court held that the Society did require such an order.
A.A. was in the extended care of the Society. The Society was the legal parent of the A.A. and it was not in dispute that the Society has legitimately obtained access to information about the child's prior involvement with the youth criminal justice system. But simply because the Society had lawfully obtained this information did not mean it had the lawful authority to reference that information in subsequent family court proceedings.
The information came from a Society worker’s notes. The Court ruled that even if those notes were not created for youth criminal justice purposes, the admissibility of the information contained within them was still subject to the provisions of the YCJA.
Section 129 of the YCJA states:
No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. [Emphasis added]
In S.L. v. N.B., 2005 CanLII 11391, the Ontario Court of Appeal interpreted the protections contained in the YCJA with respect to youth records and noted at paragraph 43:
Even where access is permitted, Parliament seeks to protect young persons' privacy interests by limiting dissemination of the information in the records even after access is granted.[Emphasis added]
Justice Buttazzoni held that section 129 of the YCJA “prohibits not just the dissemination of the actual youth record itself, but also of the information contained within that record. This prohibition applies to anyone, including a society worker, who has been properly given access to the record or the information contained in the record itself.” [Emphasis added.]
For any information referencing youth criminal justice system of a child / young person to be disclosed in the context of a CYFSA proceeding requires the Society to obtain an order in youth court pursuant to either section 119(1)(s) or section 123(1). It does not matter how the Society obtained that information initially.
This is an absolutely crucial point that counsel must appreciate. Indeed, it is an offence under the YCJA to unlawfully distribute youth records.
This decision does stand in contrast to the prior decisions of the Ontario Court of Justice in Native Child and Family Services of Toronto v. K.G., 2019 ONCJ 457 and the Nova Scotia Court of Appeal in E.M.Y. v. Nova Scotia (Community Services), 2020 NSCA 46.
It is vital that counsel who practice in these areas remain vigilant of future court decisions the lawful dissemination of youth criminal justice records in family court proceedings continues to be litigated.
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