M.G. v. The Director of Child and Family Services, 2021 MBPC 40

CITATION: M.G. v. The Director of Child and Family Services, 2021 MBPC 40 THE PROVINCIAL COURT OF MANITOBA YOUTH DIVISION BETWEEN M.G. ) ) ) Zachary Kinahan for the Young Person - and - ) ) ) The Director of Child and Family Services ) ) Tyler Grant and Lindsey Camejo for the Agency ) ) ) Reasons for Decision ) Delivered: September 10, 2021 Rolston P.J.

INTRODUCTION [ 1 ] This application pits a young person’s privacy rights guarded by the Youth Criminal Justice Act (“ YCJA” ) against society’s interest in protecting young people from potential abuse via the maintenance of the Child Abuse Registry. [ 2 ] The Director of Child and Family Services (“The Agency”) applies to the Youth Court for an order compelling the police to release records relating to an investigation of historic allegations against M. G. (“the Youth”) prior to his adulthood. No charges were ever laid against the Youth, and several years have passed since the allegations arose.

The Agency wishes to obtain the police investigation records in support of an application to have the Youth placed upon the Child Abuse Registry, and argues that the Youth’s records should be ordered disclosed. [ 3 ] The Youth opposes the Agency’s application on the basis that the YCJA prohibits disclosure, or alternatively, that in this case, the young person’s right to privacy should take priority over the Agency’s interests in the records. [ 4 ] The parties agree that disclosure of these records is not prohibited by any other Act of Parliament and that records held under the YCJA are generally not disclosable except as allowed by the YCJA .

It is also agreed that there is both a factual and legal onus on the Agency to establish that the records should be disclosed. [ 5 ] Several issues have emerged that need to be resolved in order to determine whether the Agency should have access to the Youth’s records: • What constitutes the record being sought? • How should the records that the Agency is seeking be classified? • Are the records disclosable in light of how they are classified? [ 6 ] Each of these issues will be dealt with in order to determine whether the Agency should be granted access to the youth police records relating to M.G.

What constitutes the record being sought? [ 7 ] The Agency is seeking an order for the disclosure of “records, reports and file material, including all youth records, reports and file material kept by the Royal Canadian Mounted Police” relating to the Youth for the purpose of the Youth’s upcoming child abuse registry hearing. [ 8 ] It is important to note at the outset that this is an application pursuant to the YCJA. The Supreme Court of Canada commented on balancing public interests with the interests of individual young people in R . v.

R.C. , 2005 SCC 61 , at paragraph 42 : In protecting the privacy interests of young persons convicted of criminal offences, Parliament has not seen itself as compromising, much less as sacrificing, the interests of the public. Rather, as Binnie J. noted in F.N. (Re) , [2000] 1 S.C.R. 880 , 2000 SCC 35 , protecting the privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society: 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. [para. 14] [ 9 ] While the YCJA primarily deals with youth criminality, it also is designed to protect the young people that are dealt with under the YCJA . Parliament has set out a series of principles that are intended to ensure that young people are dealt with in a proportionate manner, while at the same time allowing for rehabilitation and reintegration into law abiding society. The YCJA also requires that youth justice be dealt with in a timely way.

These principles, set out in

section 3 of the YCJA recognize that children are maturing as people and are premised on the realization that young people are less morally culpability than adults. It is clear that the YCJA should be “liberally construed” to ensure that these principles are respected (see YCJA section 3(2)). [ 10 ] It follows that information surrounding the investigation and prosecution of young people for criminal behaviour should be protected.

Part 6 of the YCJA sets out a comprehensive set of rules surrounding when and how a young person’s information may be used beyond the purpose for which it was collected. The starting point that is set out in the YCJA is that information, including the identity (section 110(1)), fingerprints and photographs (section 113), and records relating to the young person (sections 114 to 116) of the young person are not to be made public (see

section 118 of the YCJA). These are subject to exceptions set out in the YCJA . [ 11 ] The present application relates only to records. A “record” is defined in

section 2 of the YCJA as: any thing containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine-readable record, and any copy of any of those things, 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. The Agency filed the Affidavit of Belinda LeClair in support of its application for M.G.’s youth RCMP records.

The affidavit describes that an Agency social worker attended to an interview between a forensic interviewer and the complainant of the relevant allegations (Affidavit of Belinda LeClair, affirmed August 13, 2021 at paragraph 7). The video tape of this very same interview was provided to the RCMP and is the central piece of evidence that the Agency would rely upon in advancing its position that M.G. be placed on the Child Abuse Registry. Ms. LeClair’s affidavit contains detailed notes from the social worker as to what was said in the interview.

During oral submissions, I suggested to the Agency that the notes of the social worker seem to qualify as part of the “record” pursuant to

section 2 of the YCJA , and therefore that the Agency application was premised on information that was protected under the YCJA . [ 12 ] The Agency argues that they are entitled to rely upon the information collected by the social worker for the following reasons: • The Agency has a duty under the Child and Family Services Act ( CFS Act ) to protect children and to investigate suspected child abuse, • The child was interviewed at Snowflake Place (now Toba Centre), an agency separate from any police agency which “co-ordinates a collaborative approach to interviewing child abuse victims”, • The police are required pursuant to

section 18.4 of the CFS Act to provide information relevant to child abuse to the Agency, and • It is not unusual for a worker to observe an interview at Snowflake Place/Toba Centre, in order to pool resources and avoid duplicate interviews where appropriate.

The Agency therefore maintains that while the notes taken were a record of the same information taken by police in furtherance of the investigation under the YCJA , the purpose of the notes taken by the social worker were not “ for the investigation of an offence that is or could be prosecuted” under the YCJA , but were taken in furtherance of a child abuse investigation. [ 13 ] There are many valid reasons for the Agency and the police to work together in allegations of child abuse.

While the Agency’s rationales have merit at first blush, there are several concerns that emerge in the present circumstances, where the alleged abuser is a child. Specifically, it is clear upon closer review that the notes taken by the social worker were not, in fact part of a separate child abuse investigation. [ 14 ] Firstly, the timeline of events suggests that the Agency did not investigate this matter, but relied entirely on the police. The Agency received information regarding the abuse and made a report to the police on November 26, 2018 (Affidavit of Cindy Mantueffel affirmed March 4, 2021).

The interview in question was completed on December 4, 2018. M.G. was arrested on December 13, 2018, and the Child Abuse Committee was given the social worker’s child abuse investigation report on December 28, 2018. On March 8, 2019 the RCMP and the Crown advised the Agency that charges were not approved ( Affidavit of Belinda LeClair, at paragraph 11 - 13). The Child Abuse Committee waited for further investigation into M.G.’s father before determining whether to proceed. Accordingly,

while the notes were used to inform the Child Abuse Committee by way of the investigator’s report, it is clear that neither the Agency nor the Child Abuse Committee conducted any investigation on their own.

This suggests that the purpose of the notes were not utilized for anything separate from the police investigation. [ 15 ] Secondly, if the interview done at Snowflake Place/Toba Centre was truly for a joint purpose between the police for a criminal investigation and the Agency for a child protection purpose, the Agency would have been given access to the video recording of the interview in the first place on the same basis that the Agency seeks the recording now.

The fact that this was not done suggests that this was really a police investigation. [ 16 ] Also, there is an inherent danger that exists from relying on notes of an interview to serve as the substantive investigation in the way that the Agency purports to do in this case. The notes are only as good as the note taker. That is to say, the notes may not be accurate in that the worker may have inadvertently noted only confirmatory aspects of the interview and ignored parts that did not support his perception of what occurred.

Alternatively, the worker may not have kept accurate notes of what was actually said, such that the notes are not a complete reflection of the interview. Further, there may be other aspects of the investigation that the social worker may not be privy to that are not known to the Agency. The Agency argues that this rationale supports disclosure of the entire investigation. I respectfully disagree. The principles of the YCJA expressly mandate swift resolution so as to allow for the young person to avoid stigmatization.

The Agency had an obligation to investigate M.G. at the time the allegations arose, but elected to allow the police to do so for them. The use of the notes taken by the social worker at this juncture circumvents the purpose of the YCJA protections by using incomplete information to obtain what it refers to as “the best evidence”, rather than conducting its own investigation of the matter at hand. [ 17 ] Lastly, the fact that the police are required to assist the Agency by providing information where there is a child in need of protection pursuant to

section 18.4(1.1) of the CFS Act does not assist in the context of this application. It is clear from the YCJA that any information that is collected under the YCJA can only be shared in specific circumstances and for specific purposes. In this case, the police properly shared updates as to their criminal investigation. However,

section 18.4 of the CFS Act cannot be said to extend to apply several years after the completion of a police investigation to support an entry on the Child Abuse Registry.

Part 6 of the YCJA would be effectively rendered meaningless by

section 18.4 if such an

interpretation was accepted. [ 18 ] The goal of the Agency and the police to work together to gather information regarding suspected child abuse is valid. However, it is important that agencies appreciate that additional considerations apply when they are investigating young people as suspected abusers. Sometimes conducting investigations the way it is usually done overlooks the fact that the circumstances are not usual. This is one of those cases.

I find that the notes taken by the social worker were taken under the YCJA , as they were collected “for the investigation of an offence that is or could be prosecuted” under the YCJA .

The notes therefore qualify as being part of the record that is being sought by the Agency such that the further use of social worker notes are subject to the considerations set out below. [ 19 ] Accordingly, the analysis set out below pertains to “records, reports and file material, including all youth records, reports and file material kept by the Royal Canadian Mounted Police” as set out in the Agency’s application as well as the notes already in the possession of the Agency. How should the records that the Agency is seeking be classified? [ 20 ] As already stated,

Part 6 of the YCJA sets out comprehensive rules surrounding the keeping and release of information and records pertaining to young people. It is important to understand what kind of record is at issue since the rules respecting who may have access to which records and when is dependent upon the nature of the record itself. [ 21 ]

Section 114 of the YCJA pertains to records held by a youth justice court. Since a youth justice court does not become involved in the process until charges are sworn and filed,

section 114 records are only records held by the court after charges have been laid. No such records are being sought here.

Section 116 involves government agency (including the Crown prosecutor) records that are also not relevant to this application. [ 22 ]

Section 115 of the YCJA deals with records held by the police. Section 115(1) relates to records of “any offence alleged to have been committed”, and as such includes any records held where charges have not been laid, but could include records of charges that have been laid. Either way, the Agency’s application clearly fits into this category of records. [ 23 ]

Section 119 of the YCJA limits who can access youth records and when those records can be accessed. Parliament has very carefully limited this access based upon how far the allegations proceeded in the justice system and the amount of time that has elapsed since the record was made. For example, a class of people shall have access to

section 114 records (court records where charges were laid), but may have access to

section 115 records (police records of allegations), subject to other limitations set out in

section 119. Also,

section 115 records where extrajudicial sanctions (instances where police resolved the case without going to court) were initiated are disclosable only in a very specific set of circumstances set out in section 119(4). The limitations set out in

section 119 suggest that the older the records are, the more protection they are afforded. Also, the degree of protection afforded to the record is largely dependent on the disposition of the case. The strictest limitation against disclosure applies where the court system was not involved (i.e. Extrajudicial sanctions), and slightly less limitation applies where no formal finding or an acquittal has been entered. Where formal findings of guilt result, more access is granted. These limitations are consistent with the principles set out in the YCJA respecting the right to privacy of young people, while promoting accountability and proportionality. [ 24 ] Interestingly,

section 119 assigns time limitations to access only records involving “charges”. There is no direction assigned to records involving “offences alleged to have been committed”. In other words, while it seems that a

section 115 record can be a

section 119 record, a

section 119 record is not necessarily a

section 115 record. Accordingly, the nature of the record being sought is crucial to the application before the court. [ 25 ] Since the Agency is making the application before the court, the Agency bears the factual burden of proof. The Affidavit of Belinda LeClair sets out the relevant evidence the agency relies upon respecting the disposition of M.G.’s charges. Ms. LeClair states that the social worker was advised on December 13, 2018 that M.G. was, “arrested and charged with voyeurism” (at paragraph 11). On

March 8, 2019, Ms. LeClair followed up on her own, and was advised by the RCMP that charges had not been “approved”. The social worker also followed up with the Crown on the same day and was advised that the Crown “would not be proceeding with the charges” (at paragraph 13). These three statements seem inconsistent in that if charges were already laid, their “approval” would have been already forthcoming. The fact that the Crown would not be proceeding with charges is ambiguous as it could mean that the Crown declined to have the police lay a charge, or that the charge that is already laid would not continue on.

It is not uncommon in Manitoba for investigations to be sent for a Crown opinion to determine if charges are sustainable before the charge is laid. In any event, no further evidence has been provided to the Court as to the laying of charges. No evidence of a sworn information that had been filed in court has been presented, nor is there a court record indicating that charges have withdrawn or that a stay of proceedings has been indicated.

Based upon the lack of detail included in the materials filed and the language used surrounding the word “charges”, I am not satisfied on a balance of probabilities that charges were in fact laid against M.G. Accordingly, I must proceed on the basis that no charges were laid, and the present circumstances fall into the category of offences covered by

section 115 of the YCJA, but are not covered under

section 119. Are the records disclosable in light of how they are classified? [ 26 ] The YCJA does not specifically speak to the level of protection that applies to records where no charges have been laid. Section 118(1) of the YCJA is the appropriate starting point in determining the issue: 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.

As stated, section 118(1) clearly sets out that the starting point is that youth records are not to be disclosed. [ 27 ] The YCJA also does authorize exceptions to the rule in sections 119 and 123(1). Since it has already been determined that the records sought in this case are not records that fall under

section 119, it is necessary to determine whether disclosure is permitted pursuant to section 123(1). [ 28 ] Section 123(1) of the YCJA states: A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2) , order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person, (

a) if the youth justice court judge is satisfied that (

i) the person has a valid and substantial interest in the record or part, (ii) it is necessary for access to be given to the record or

part in the interest of the proper administration of justice, and (iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province; or (

b) if the youth court judge is satisfied that access to the record or

part is desirable in the public interest for research or statistical purposes. [ 29 ] There is some debate in the jurisprudence as to how section 123(1) applies. The Agency urges the Court to follow a line of cases described in R. v. Greer 2020 ONCJ 67 (see paragraph 60 to 68). The Courts in this line of cases found that section 123(1) creates one exception for disclosure that was authorized under

section 118 of the YCJA . While section 123(1) references

section 119, the Courts interpreted the

section to also include records that are not

section 119 records but fall into sections 114 to 116. [ 30 ] The rationale to this

interpretation which the Agency endorses here, starts with the premise that the test set out in section 123(1) is more stringent than that in

section 119, thereby exerting tighter control on records where no charges have been laid. In Greer , the court rationalized further that aside from extrajudicial measures, all other youth records, including those resulting in an acquittal may be disclosed. The court pointed out that “as a matter of fundamental justice”, an acquittal must be viewed as tantamount to a finding of innocence.

Therefore, if Parliament did not limit disclosure where there was a finding of innocence, there should be no absolute restriction on records where no charges arose. [ 31 ] There are several difficulties with the rationale set out in the Greer line of cases. [ 32 ] First of all as already stated, the YCJA is to be liberally construed so as to fit within the principles set out in

section 3. These principles place a high priority on maintaining privacy and allowing a young person to not be labelled into adulthood for mistakes made as a young person. It is noteworthy that the present application is specifically designed to impose a label that will last for ten years into M.G.’s adulthood based upon unproven allegations. In my view, the Greer line of cases does not accord with a liberal

interpretation of the YCJA . [ 33 ] Secondly, a plain reading of section 123(1) is not consistent with the

interpretation set out in Greer . While the

section references

section 114 to 116 records, the preceding qualification, “ after the end of the applicable period set out in subsection 119(2) ” indicates that the

section applies only to

section 114 to 116 records that are

section 119 records. This is consistent with the escalating nature of protection afforded to records based upon the amount of time elapsed and the extent of court involvement or disposition as set out in sections 119.

[34] Both of the above counterpoints to the Greer line of cases were adopted in R. v. Gure, 2019 ONCJ 585, and a line of casesreferenced therein. I accept and prefer the rationale set out in these cases as the appropriate analysis of these issues. [35] Lastly, I respectfully disagree with the suggestion in Greer that an acquittal is tantamount to innocence in the context ofprotection of youth records. The court referenced Grdic v. The Queen (SCC), [1985]1 S.C.R. 810 as authority for thisproposition.

Grdic is a case about issue estoppel, where the Crown attempted to prove that an alibi that was accepted at an earlier trialamounted to perjury. It is settled law that an acquittal in that context is a finding of innocence. In the present context, the determinativeissue is whether the evidence was or was not adequate to meet a certain burden of proof. Where a matter has gone to trial and anacquittal follows, the evidence failed to meet the burden of proof beyond a reasonable doubt. This is the highest burden in law.

Thesame evidence may have been adequate to have met a burden of proof on a balance of probabilities (which is the burden of proof in childabuse registry hearings). It follows that the evidence and therefore the records surrounding such a case would have value goingforward. In this case, the police have not laid a charge, which means that no peace officer was prepared to swear or affirm that there wasa reasonable likelihood of conviction.

There are many reasons why this decision may have been made and it would be speculative tosuggest that the reason relates to the ability of the Crown to establish any particular burden of proof. Therefore, an analysis based uponthe presumption of innocence in this context is not helpful. [36] I do not accept the line of cases followed in R. v. Greer. The proper

interpretation of

section 118 and 123(1) of the YCJA, whenconsidered in the context of the entire YCJA lead to the conclusion that Youth records held by police where no charges were laid are notdisclosable. CONCLUSION [37] At the end of the day, Parliament has set out rules as to disclosure of records. It is clear that matters dealt with and disposed ofby the police without court intervention are to be afforded the greatest protection from disclosure. [38] In this case, the Agency is seeking youth records of an investigation where charges appear to have not been laid. The recordssought fall under

section 115 but not 119 of the YCJA. Since they do not fall under

section 119 of the YCJA, they also do not fall undersection 123(1) of the YCJA. The Agency’s application must therefore be dismissed. “Original signed by:” _______________________ Rolston P.J.