2012 QCCQ 13856, 2012 QCCQ 13856

Protection de la jeunesse — 125731 2012 QCCQ 13856 JC0B11 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF [...] LOCALITY OF [...] Youth Court Division No: 760-41-003930-115 DATE: July 9, 2012 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ X [...] , 1995 Adolescent THE DIRECTOR OF YOUTH PROTECTION OF LE CENTRE JEUNESSE A Petitioner -and- A -and- B Parents of the adolescent JUDGMENT ______________________________________________________________________ [ 1 ] INTRODUCTION

[ 2 ] The Court is seized with a motion to revise and extend a Court decision rendered on May 5, 2011, concerning the adolescent X , […] , 1995.

The Director of Youth Protection contends that the situation of the adolescent, as more amply detailed in paragraph 4 of the motion, justifies that he be maintained in a rehabilitation center until his majority, with various other measures of aid and support. [ 3 ] An accessory verbal motion is presented by the Director of Youth Protection in virtue of articles 11.2 and 72.5 of the Youth Protection Act (hereinafter Y.P.A.), requesting the disclosure and production in the Court file of a psychiatric evaluation report prepared by the A Institute, within proceedings engaged against the youth in virtue of the Youth Criminal Justice Act .

It is alleged that the said evaluation will elucidate the Court as to the necessity of maintaining the youth in a rehabilitation center setting. The adolescent contests the production of the said report, invoking its confidentiality. The Court reserves its decision on the motion until the end of the hearing and seals the report. [ 4 ] The father is absent, of unknown address and not implicated in X 's life. The Court proceeds in his absence. [ 5 ] The Petitioner produces by consent, the report on the analysis of the adolescent's social situation as evidence, in lieu of testimony.

The admissions of the parties as to the motion are noted in the Court record. [ 6 ] The parties present agree that it is necessary to prolong the intervention of the Director of Youth Protection, in order to ensure the continuation of services and address the ongoing issues, which still affect the security and the development of the adolescent. However, both X and his mother submit that the evolution of the situation justifies a return in the maternal milieu. [ 7 ] FACTS [ 8 ] The last Court decision provides that the adolescent be entrusted for a period of 9 months in a rehabilitation center.

In the maternal milieu, he presents aggressive and violent behaviours. Alcohol and drug abuse is present and the adolescent chooses non- recommendable peers. He openly rejects his mother's authority and their relationship is conflictual. [ 9 ] At the onset of the adolescent's placement, the plan is to integrate him in a group home in a process towards autonomous living. This plan is put aside before the necessity to further address the various issues, which continue to impede his progress. [ 10 ] Initially, X continues to exhibit behavioral difficulties and repeatedly runs away from his unit.

During a break out in October, he is arrested for robbery and assault and detained under closed custody. He receives a custodial sentence and remains detained until June 29 th 2012. [ 11 ] The mother/son relationship is persistently discordant, a thematic which is maintained throughout the intervention. Until recently, X 's rejects the possibility of a return home and his priority is an accession to independent living.

Both the adolescent and his mother indicate that since X 's detention, they have renewed their communication, been able to resolve long-standing issues and this, in a respectful and constructive manner. They are confident that this newly acquired harmony in their relationship permits a return home. [ 12 ] X has made efforts to address his anger issues, by following anger management therapy and seeing a psychologist. [ 13 ] His drug and alcohol consumption have been ongoing and little is accomplished to deal with this problem.

Although he states realizing the importance of dealing with this issue, he only recently commences meetings with Foster's. [ 14 ] ANALYSIS [ 15 ] Motion for disclosure of psychiatric report [ 16 ] As to the Director's motion for the disclosure of the A Institute report, the Court reproduces the articles of the Y.P.A., which are cited as the foundation of the request: 11.2. Any information collected under this Act concerning a child or his parents that would allow their identification is confidential and may not be disclosed by anyone except to the extent provided for in

Chapter IV.1.

CHAPTER IV.1 CONFIDENTIAL INFORMATION 72.5. Notwithstanding subparagraph 1 of the first paragraph of

section 53 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1 ), no information collected under this Act in respect of a child or his parents that would allow the identification of the child or parents may be disclosed except with the authorization of the child himself if he is 14 years of age or over, where the information relates to him, or with the authorization of one of his parents where the information relates to a child under 14 years of age.

However, where the information relates solely to the parents, it may not be disclosed except with the authorization of the parent to whom it relates. Such information may, on application, be disclosed by order of the tribunal where the disclosure is intended to ensure the protection of the child to whom the information relates or the protection of another child. Only the director or the Commission, according to their respective powers, may apply to the tribunal for an order for the disclosure of such information. This

section shall not be construed as limiting the power of a court to order of its own motion or on application the disclosure of such

information in the exercise of its powers and functions. [ 17 ] The articles cited refer to information collected in virtue of the Youth Protection Act and cannot therefore justify the disclosure of other confidential information, and in this case, information which has been collected in application of the Youth Criminal Justice Act . [ 18 ] Notwithstanding, as the Director submits the necessity of the disclosure of the information in the psychiatric report, the Court will proceed to evaluate if, how and whether it is appropriate, to order such. [ 19 ] The Court can order the communication of documents in virtue of

article 84.1 of the Youth Protection Act, which stipulates the following: 84.1. If, after the filing of the motion, a document relating to the proceedings is found to be in the possession of a third party, the third party may be ordered, upon summons authorized by the tribunal, to communicate it to the other parties, unless he shows cause why he should not do so.

The tribunal may, at any time after the filing of the motion, order a party or a third person to exhibit, preserve or submit to an expert's appraisal any real evidence relating to the proceedings he has in his possession on the conditions, at the time and place and in the manner it considers expedient. [ 20 ] What are the guiding principles in rendering such an order? [ 21 ]

Article 84.1 Y.P.A. essentially reproduces

article 402 of the Code of Civil Procedure, and the Court refers to the

interpretation of this

article offered by jurisprudence. The Supreme Court of Canada in La Métropolitaine compagnie d'assurance-vie c. Raymond Frenette et l'Hôpital Jean-Talon [1] , states the following: From this review of cases relating to requests for access to medical records under art. 402 C.C.P. , the following propositions emerge.

In the absence of an express or implied waiver, or a legislative provision allowing direct access, or when, in spite of such valid waiver or provision, access is denied by a health care facility, a party may request an order of the court, directed against that facility, in order to gain access to the records needed, based on art. 402 C.C.P. In the case of an unjustified denial of access, such as where a valid waiver was made or a legislative provision exists which allows access, courts must compel the establishment to respect the terms of the waiver or the legislative provision.

Otherwise, judges must exercise their discretion under art. 402 C.C.P. according to the degree of relevance and importance of the information sought relative to the issue between the parties. In exercising that discretion, a court must weigh the diverse interests in conflict. The questions of whether access will be granted at all, the scope of that access and timing of that access all depend on their relevance (…) to the question in issue. Access to the information sought becomes inextricably linked to one's ability to prepare a full defence.

Accordingly, a judge will be greatly inclined to allow access to medical records where the state of health of the holder of the privilege is the central issue of the case and where there are no other means for a party to prove his case. It is the judge's task to weigh these factors in the pursuit of an efficient and healthy administration of justice while at the same time ensuring the protection of the right of privacy and confidentiality of an individual against fishing expeditions.

Article 402 C.C.P. allows the courts the discretion to balance the interests of justice against the rights of the individual. In each case, the result will depend on the particular circumstances involved. [2] [ 22 ] In the case of proceedings in virtue of the Y.P.A., the Court considers that certain distinctions are necessary and this, in view of its global application. [ 23 ] In Protection de la jeunesse - 11844 [3] , Justice Robert Proulx analyzes

article 84.1 Y.P.A. in relation to the disclosure of the psychiatric evaluation of a parent. He muses that to proceed to such an order in virtue of

article 84.1, would circumvent articles 86 and 87 Y.P.A., which read as follows: 86. Before rendering a decision on the measures applicable, the tribunal shall take cognizance of the director's analysis of the child's social situation and the recommendations made. The director may, at his discretion, or must, if the tribunal so requires, attach to it a psychological or medical assessment of the child and of the members of his family or any other expert opinion that may be useful.

The cost of such studies, assessments or expert opinions shall be at the expense of the institution operating the child and youth protection centre. 87. The parents of the child or the child himself, if he is 14 years of age or over, may refuse to submit to a study, an assessment or any other expert opinion contemplated in

section 86 . In the case of refusal by the child, the study, assessment or expert opinion shall not take place and the refusal by the child and, as the case may be, the refusal by the parents shall be recorded in a report sent to the tribunal. When the child, if he is 14 years of age or over, consents to submit to such a study, assessment or expert opinion, it shall take place although the parents refuse to submit to it; in such a case, the refusal by the parents shall be recorded in a report sent to the tribunal.

However, the parents and the child shall not refuse to submit to such study, assessment or expert opinion when it is required with regard to a situation contemplated in subparagraphs d and e of the second paragraph of

section 38. [ 24 ] It would therefore be incoherent that the Court force disclosure of a psychiatric assessment at the measures stage, when the parties must give consent for such an assessment of this nature, save the exception provided. Any other

interpretation would allow to indirectly produce in evidence information which may not be produced directly without consent, save in instances of physical or sexual abuse. [ 25 ] Consequently, the Court's jurisdiction as to ordering the disclosure of an expert's assessment is necessarily relegated to the initial evidentiary stage, at which point it must exercise its discretion as instructed by the jurisprudence.

Fundamentally, the Court has to determine if the document relates to the proceedings. [ 26 ] As the determination of the security or development being in danger and the consequent measures, are often the object of joint evidence, it can be difficult to ascertain in what respect the information is to be considered essential.

The onus is therefore on the party making the request for disclosure to clarify its necessity in relation to a specific issue under debate and particularly, as to whether such information is necessary in relation to the initial establishment of a situation compromising the security or development, or the consequent measures. [ 27 ] In the case under analysis, the evidence presented is sufficient, to permit a clear determination on the issue of the adolescent's security and development continuing to be in danger, situation which is not contested by the parties.

As this evidence is not required for the Petitioner to complete its evidence, the Court considers that the adolescent's rights to confidentiality are an over-riding factor. [ 28 ] It is on the aspect of the measures that the psychiatric report could have bearing. For the reasons cited above, the Court considers that it cannot order the disclosure of such a psychiatric evaluation without the consent of the parties.

Consequently, the Petitioner's motion is dismissed. [ 29 ] As a final note on this issue, the attorney for the Petitioner informs the Court that this information had already been communicated to the Director by their counterparts applying the Y.C.J.A., in virtue of their shared jurisdiction.

The Court finds no legal basis for such an ease of communication of confidential information, which counters the requirement of obtaining either consent or Court approval. [ 30 ] Motion for revision and extension [ 31 ] The Court determines that the security and the development of the adolescent are still in danger. [ 32 ] A return home is premature. Although elements of progress are noted, these are altogether too recent to constitute a solid foundation for the continued success of an intervention in the family environment.

To justify such a measure, X must demonstrate the sincerity of his goals by persevering in time and in adversity. For now, the youth's best interests dictate that he continue to be entrusted to a rehabilitation center. [ 33 ] X continues to have an interesting potential to succeed. He is intelligent, well spoken and determined. Before his impending adulthood, he renews his efforts to further address the issues he openly recognizes as impeding his progress.

Consequently, the Court considers that it is appropriate that he be maintained in a rehabilitation center until December 2012, a period of time that will permit to determine the degree of his tenacity to succeed. [ 34 ] FOR ALL THESE REASONS, THE COURT: [ 35 ] GRANTS the motion for revision and extension of a Court decision; [ 36 ] DISMISSES the motion for disclosure of the A Institute report; [ 37 ] DECLARES that the security and development of the adolescent are still in danger; [ 38 ] ORDERS the adolescent be entrusted to an institution operating a rehabilitation center until December 1 st 2012; [ 39 ] ORDERS that the adolescents and his parents take an active

part in the application of the measures ordered by the Court; [ 40 ] TAKES ACT of the adolescent engages himself to continue his therapy and or meeting with A , B , as well as pursuing anger management; [ 41 ] ORDERS that a person working for an institution or body provide aid, counselling or assistance to the adolescent and his parents; [ 42 ] ALL these measures until the adolescent's majority on June 3, 2013, except for the entrustment to the rehabilitation center; [ 43 ] ENTRUSTS the situation of the adolescent to the Director of Youth Protection of the CENTRE JEUNESSE A for the execution of the measures. __________________________________ BEATRICE CLEMENT, J.C.Q. Me Karine Nantais

Attorney for the Petitioner Me Karine P. Poissant Attorney for the adolescent Date of hearing: July 9, 2012