On May 6th, the Ontario Bar Association’s Child and Youth Law and Young Lawyers Division hosted a professional development webinar featuring updates on pressing issues in child protection law.
As part of a panel on “Privacy Records in Child Welfare”, Sam Wisnicki of the Office of the Children’s Lawyer presented an overview of the rules governing access to youth criminal justice records and information and their application to child protection proceedings.
Part 6 of the Youth Criminal Justice Act, SC 2002, c.1 (“YCJA”) sets out the comprehensive rules surrounding when and how a young person’s YCJA information and records may be used outside of the youth justice system and beyond the purpose for which it was collected. Section 118(1) of the YCJA prohibits access to youth justice records and information that could identify a young person unless it is explicitly authorized by the YCJA. Section 119 provides a list of those who can access YCJA records during an open access period and the time period for such access. Once the access period expires, records regarding a young person are sealed or destroyed and cannot be disclosed unless ordered by a Youth Court judge under section 123(1) of the YCJA. Section 129 prohibits any person who is given access to a record or to whom information is disclosed under the YCJA from disclosing that information to any other person unless the disclosure is authorized under the Act.
The jurisprudence in Ontario has generally concluded that youth justice courts (in Ontario, the Youth Court of the Ontario Court of Justice) have exclusive control over the access to youth justice records and information. In SL v NB, 2005 CanLII 11391 (ON CA), Doherty J.A. explained that Part 6 of the YCJA demonstrates a clear intention to protect the privacy of young persons, and access to records are limited to circumstances where a valid public interest is strong enough to override the benefits of maintaining the privacy of young persons coming into contact with the law. Doherty J.A. determined that Parliament had placed the exclusive responsibility for determining access to records under the YCJA on Youth Court judges, who were most familiar with the law and underlying policies and principles.
However, recent Ontario jurisprudence has been divided on the need for a Youth Court order to access YCJA records in child protection proceedings.
For example, the Family Court in Native Child and Family Services of Toronto v K.G., 2019 ONCJ 457 (“K.G.”) dismissed a motion to strike portions of the child protection workers’ affidavits filed in support of the child protection proceeding. The affidavits included information about the child’s interactions with the youth justice system, and the children’s aid society (“society”) had not applied for a Youth Court order to use the information in the child protection proceeding. Justice O’Connell determined that it was not necessary for her to sit as a youth criminal court justice to allow the use of the information in this proceeding. Justice O’Connell relied on the privacy protections in child protection proceedings under the Child, Youth and Family Services Act (“CYFSA”) and the definition of “record” contained in section 2 of the YCJA. A “record” under the YCJA includes anything containing information that is created or kept for the purposes of the YCJA [emphasis added] or for the investigation of an offence that could be prosecuted under the YCJA. The society was the legal guardian of the child, and the workers had personal knowledge of the child’s youth justice proceedings and attended the Youth Court appearances with the child. Justice O’Connell determined that the “record” in question was not a YCJA record as it was not created for the purposes of the YCJA; rather, it was a record of the society and was admissible in the proceeding under the Child, Youth and Family Services Act (“CYFSA”). Justice O’Connell also determined that section 119(1)(n) of the YCJA applied and the society was entitled to the child’s youth justice record.
The Nova Scotia Court of Appeal has adopted with approval the reasoning in K.G. (see E.M.Y. v. Nova Scotia (Community Services), 2020 NSCA 46).
In contrast, the Family Court in Children’s Aid Society of the Districts of Sudbury and Manitoulin v. A.A., 2021 ONCJ 188 rejected the reasoning contained in K.G. and found that an order from the Youth Court under the YCJA was required for information regarding a child’s involvement in the youth justice system that were contained in the children’s aid society’s special treatment application, despite the information being obtained by the society in its role as the child’s legal guardian. Justice Buttazzoni found that the decision in K.G. failed to consider the unequivocal prohibition contained in section 129 of the YCJA. Section 129 prohibits anyone who has been given access to a record or to whom information is disclosed [emphasis added] under the YCJA from disclosing that information to any other person unless authorized under the YCJA. A plain reading of section 129 prohibits the dissemination of the information contained in a youth record and would apply to a society worker who had previously been given access to the record or information. Justice Buttazzoni found that the information could only be used in a CYFSA proceeding after first obtaining an order in Youth Court pursuant to section 119(1) or 123(1) of the YCJA.
It will be interesting to see how the case law progresses and, if given the opportunity, how the Court of Appeal will clarify the Family Court’s role in permitting access to Youth Court records.
About the Author
Jonathan (Yoni) Glasenberg is Legal Counsel at the Office of the Ontario Ombudsman, and has previously worked as Crown Counsel for the Ministry of the Attorney General of Ontario’s Crown Law Office – Civil.
Any view expressed in this article are that of the writer and not of his employer or the OBA