2020 ONCJ 675, 2020 ONCJ 675

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

ONTARIO COURT OF JUSTICE CITATION: O.P. v. Children’s Aid Society of London and Middlesex , 2020 ONCJ 675 DATE: 2020 10 27 COURT FILE No.: CV-19-00619242-0000 IN THE MATTER OF an Application by the Plaintiff O.P. as Litigation Guardian for T.L.LP. and T.M.LP. for an Order, pursuant to the provisions of

section 123 of the Youth Criminal Justice Act , S.C. 2002, c.1 , for the disclosure of certain documents; AND IN THE MATTER OF certain documents prepared pursuant to, or which are subject to, the Youth Criminal Justice Act or predecessor statutes relating to N.L. held in the custody and control of Her Majesty the Queen in right of Ontario, and/or an Agency of the Government and requested by the said Plaintiff. BETWEEN: O.P. — AND — CHILDREN’S AID SOCIETY OF LONDON AND MIDDLESEX SITTING UNDER the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 , as amended AND IN THE MATTER OF an Application under

section 119 and 123 of the Youth Criminal Justice Act for access to records of N.L. Before Justice Wendy Harris Bentley September 30, 2020 Reasons for Judgment released on October 27, 2020 Loretta Merritt....................................................................... counsel for the Applicant O.P.

Alex Redinger...................................................................................... c ounsel for the Crown HARRIS BENTLEY J.: Application [ 1 ] The Applicant, O.P., as litigation guardian for T.L.LP. and T.M.LP., makes application for production of all records in the possession of the London Crown Attorney’s Office or the Ontario Provincial Police with respect to the investigation and prosecution of young person, N.L. pursuant to

section s 119 and 123 of the Youth Criminal Justice Act ( YCJA ). Although initially requesting access to

transcripts of any court proceedings, that request has been abandoned. [2] The Applicant has served all the relevant parties except for the young person. Although all reasonable efforts were made to findand serve him, including requesting information from the Crown and his former defence counsel, service was not possible. In thesecircumstances, I dispensed with service of the young person pursuant to 123(4) YCJA as insisting upon service would frustrate thisapplication.

He did not appear at the hearing and no submissions were made on his behalf. [3] The defendant of the originating action, the Children’s Aid Society of London and Middlesex (CAS) does not oppose thisapplication. [4] A publication ban further to

section 486.4 Criminal Code was and is in effect preventing publication of any information whichcould identify the victim in this matter. S. 111 of the YCJA also applies to protect the victim against publication of information thatwould identify them. There is also, as a result of N.L. being a young person, a prohibition against publishing the name of the youngperson, or any other information if it would identify the young person as a young person dealt with under the YCJA further to s. 110 ofAct.

Background information [5] The Applicant has brought a civil action against the Children’s Aid Society of London and Middlesex (CAS) for their allegednegligence resulting in the alleged abuse of the minor plaintiffs by the young person. [6] The Plaintiffs allege that T.L.LP. was abused between 2008 to 2017 and that T.M.LP. was abused between 2013 to 2018. Theyallege that the CAS was negligent in failing to properly investigate, supervise and prevent further abuse from occurring to the plaintiffs. [7] Complaints were made to the CAS beginning in 2011.

After reviewing the complaints, the CAS determined that the infantplaintiffs should remain with their mother on the understanding that she would supervise the plaintiffs and not allow the young person tobe alone with them. The plaintiffs allege that further abuse occurred between 2011 and 2018. [8] N.L. was arrested in the spring of 2016 and charged with sexual interference, invitation to sexual touching and sexual assault, allof T.M.LP., not of T.L.LP. The Crown proceeded by indictment. N.L. pleaded guilty on October 23, 2017 to sexually assaultingT.M.LP. (count 3 on the information).

He was sentenced on February 5, 2018 and the remaining charges were withdrawn. The firstcount had an offence date of May 8, 2013. The second and third counts had offence date ranges of May 8, 2013 to November 1, 2016. Application to Youth Court [9] This application is being heard subsequent to an application and decision regarding the same records for family proceedings inthe Ontario Superior Court.

The Court allowed access to some of the documents subject to the Superior Court deciding on the relevanceof the documents. [10] I am in receipt of records from the investigating police service, the Ontario Provincial Police, and the Crown. Positions of the Parties The Applicant [11] The Applicant submits that the records requested are both within and outside the retention periods and that both s. 119 and s. 123YCJA apply. The Applicant maintains that the records related to matters where charges were not laid are accessible using the test under s.123 of the Act.

The Applicant maintains that both tests are met and that the records requested should be disclosed. [12] In order to prove the claim of negligence against the CAS, the Applicant submits that they must show that the CAS wasnegligent and that the negligence resulted in harm to the children. The plaintiffs allege that if the CAS had properly investigated theinitial complaints, they would have uncovered the ongoing danger to the two infant plaintiffs. They were negligent in not doing so.

Hadthey done a proper investigation, it would have resulted in the CAS monitoring or supervising the infant plaintiffs or removing themfrom the mother’s residence which in turn would have prevented the alleged ongoing abuse. [13] The Applicant contends that the records to which they are requesting access will demonstrate that witnesses had relevantknowledge that was discoverable by the CAS.

The records would also supply information given by the witnesses at an earlier time whichmay assist memories at this later date. [14] The Applicant also contends that any information relating to the nature and extent of any abuse is relevant to the infant plaintiffs’damages. [15] Therefore, the records are relevant and necessary to this assessment and it would be unfair to require the Applicant to proceed totrial without having discovery of the records meeting the requirements of rule 30.10 of The Rules of Civil Procedure (RCP). [16] The Applicant agrees that the Crown must examine the records to be provided to consider whether some of the documents aresubject to privilege or public interest immunity or other public policy, further to D.P. v.

Wagg, (ON CA), [2004] OJNo 2053 (Ont. C.A.) (Wagg). Counsel has had discussions with the Crown and agrees to the redactions set out by the Crown and agreesthat any Wagg concerns can be dealt with in the Ontario Court of Justice. The Attorney General (the Crown) [17] The Crown takes no position on the substance of the application. The Crown, however, has taken the opportunity to review therecords according to Wagg, ibid. It has provided the Court with the records which has the portions it wishes to redact highlighted. As setout above, both the Crown and counsel for the Applicant agree to the redactions

Law [18] Part six of the YCJA strictly limits access to records created or kept for the purposes of the Act. S 118 YCJA sets out, 118

(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and noinformation contained in it may be given to any person, where to do so would identify the young person to whom it relates as a youngperson dealt with under this Act. [Emphasis added] [19] In S.L. v. N.B., (ON CA), [2005] O.J. No. 1411, Justice Doherty, stated the following at paragraph 54, “The access provisions of the Act are a comprehensive scheme designed to carefully control access to young offender records. Thelanguage of

section 118 and the comprehensiveness of the scheme itself demonstrates that Parliament intended that access to the recordsshould be gained only through the Act... Parliament in clear and unambiguous terms has placed the responsibility for determining accessto records on the shoulders of the youth justice court judges... Youth justice court judges are familiar with the principles and policiesanimating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the act that touch onaccess issues.

Youth court judges also know what records are generated by the youth justice court system, and have daily experience inconsidering and balancing the competing interests which may clash on access applications."… 22 Further, in the Supreme Court of Canada's decision in R. v. C. (R.), 2005 SCC 61, Justice Fish states the following in considering therights of a young person charged: "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, protectingthe privacy interests of young persons serves rehabilitative objectives and thereby contributes to the long-term protection of society." Stigmatization or premature labeling of a young offender still in his or her formative years is well understood as a problem in the juvenilejustice system. A young person once stigmatized as a lawbreaker may, unless given help in redirection, rendered the stigma a self-fulfilling prophecy." [par.42] Records [20]

Section 2 of the YCJA defines record as follows, record includes any thing containing information, regardless of its physical form or characteristics, including microform, soundrecording, videotape, machine-readable record, and any copy of any of those things, that is created or kept for the purposes of this Act orfor the investigation of an offence that is or could be prosecuted under this Act. [21] I have reviewed the records relating to these charges against N.L. I was provided with various reports, statements of civilianwitnesses, officers’ notes and will say statements.

The various items being sought are records as defined in s. 2 YCJA, each being a thingcontaining information created and kept for the investigation of an offence. Access Periods [22] S 119 YCJA sets out, as detailed below, who may have access to the records and when. The following subsections apply to thiscase; 119

(1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection(2), the following persons, on request, shall be given access to a record kept under

section 114, and may be given access to a record keptunder sections 115 and 116: . . . (

s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extentdirected by the judge, if the judge is satisfied that access to the record is (ii) desirable in the interest of the proper administration of justice.

(2) The period of access referred to in subsection (1) is … (

c) if the charge against the young person is dismissed for any reason other than acquittal, the charge is withdrawn, or the young personis found guilty of the offence and a reprimand is given, the period ending two months after the dismissal, withdrawal, or finding of guilt; … (

h) subject to paragraphs (

i) and (

j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence,the period ending five years after the youth sentence imposed in respect of the offence has been completed;…[emphasis added] [23] There is no period of access referenced in s. 119(2) for records in relation to which no charges were laid.

(4) Access to a record kept under

section 115 or 116 in respect of extrajudicial measures, other than extrajudicial sanctions, used in respect of a young person shall be given only to the following persons for the following purposes: (

a) a peace officer or the Attorney General, in order to make a decision whether to again use extrajudicial measures in respect of the young person; (

b) a person participating in a conference, in order to decide on the appropriate extrajudicial measure; (

c) a peace officer, the Attorney General or a person participating in a conference, if access is required for the administration of the case to which the record relates; and (

d) a peace officer for the purpose of investigating an offence. 123

(1) 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. [emphasis added] Review of the Records [ 24 ] The youth in this case pleaded guilty to one of three charges and the other two were withdrawn on February 5, 2018. The records with respect to the matter pled guilty to are within the retention period as it is within 5 years of the date of sentencing. The records with respect to the matters which were withdrawn are outside of the retention period as it has been over 2 months since their withdrawal. [ 25 ] The three charges against N.L. are related and involve the same victim, T.M.LP.

The disclosure covers all three charges. It is not possible to separate disclosure as it relates to each charge. In other words, I cannot separate the disclosure of the charge to which the young person pled guilty from that of the two that were withdrawn. [ 26 ] There is reference in some statements to T.L.LP. No charges were laid with respect to T.L.LP. This information is separate and redactable from the other disclosure. Analysis Records within the Accessibility Period [ 27 ] The matter to which the young person pled guilty is within the accessibility period.

S. 119(1) (s)(ii) YCJA sets out the test. [ 28 ] As stated by Justice O’Connell in Boyer v. Huang, supra , at paragraph 57 to 59, 57 The Act provides no express guidance on what the court should take into account when determining whether the criteria under section 119 (1) (

s) has been satisfied. 58 … a "valid interest" in a record is an interest in the record which is legitimate and relevant to the purpose for which the record is

sought. In this case access is sought to assist in a civil law suit. As Binnie, J. pointed out in F.N. (Re), 2000 SCC 35 , [2000] 1S.C.R. 880 (S.C.C.), A "valid interest" has been held to include institution of civil proceedings: Re Smith and Clerk of Youth Court, (ONSC), 31 C.C.C. (3d) 27 (Ont. U.F. Ct.) (par 34) 59 In order to determine whether he has a valid interest in the records, Mr. Boyer must articulate a factual and legal connection (nexus)between the material issues to be litigated in the lawsuit and the records being sought. I agree with counsel that it cannot be a fishingexpedition.

The court must be satisfied that the records contain information that would assist the specific applicant with a specificpurpose for their litigation. See R. v. Z.W. 2016 ONCJ 490 (Ont. C.J.) per Cohen, J.; Re D. (J.) 2009 ONCJ 505 , 2009CarswellOnt 6729; 2009 ONCJ 505, [2009] O.J. No. 6384, per Katarynych, J. [29] In the case before us, the Applicant must establish the existence of a direct link or nexus between the information that he isseeking and the specific issue in dispute.

The main issues are whether the CAS has been negligent, whether the negligence causeddamage and what the damage is. [30] The Applicant anticipates that the records will show that the CAS either knew or could have discovered the existing danger tothe infant plaintiffs had they conducted a proper investigation. The records contain information regarding allegations of sexual abuse. Inmy view, the Applicant has demonstrated a factual and legal connection between the material issues to be litigated and the part of therecords being sought. He has a valid interest that part of the records.

The remainder of the records do not shed light on the issues to belitigated. [31] The Applicant must also satisfy the court that access to the record is desirable in the interest of the proper administration ofjustice. In deciding whether the Applicant meets this test, I must remind myself of the premium placed on the privacy interests of allyoung persons involved in proceedings under the YCJA. [32] The records requested involve the statement of some of the parties to the litigation, and the occurrence reports of officersregarding the children who are the subject of the litigation.

I have not been provided with any probation reports or assessments of theyoung person and so do not have to be concerned about material in which the young person would have a higher expectation of privacy. Itake into account, accepting counsel’s submissions, that the production of records under rule 30.10 does not involve a determination ofthe admissibility of those records at a trial. The records are producible. I find that access to the record is desirable in the interest of theproper administration of justice.

The Applicant has met the test for access to some of the records. [33] A number of the records provide no information that would be relevant to the civil action and therefore there is no valid interestin them. [34] In allowing access to any record, I make no comment with regard to the subsequent admissibility of these records at trial. I amruling solely on whether the test for access has been met under the YCJA.

Records outside the Accessibility Period [35] As two of the charges against the young person were withdrawn and those matters are outside of the accessibility period, I mustconsider s. 123 YCJA. [36] Justice O’Connell in Boyer v. Huang, ibid sets out at para. 69, 69 Again, the Act provides no express guidance as to what the court should consider in determining whether the criteria under section123(1) has been satisfied.

However, in my view, the following factors should be considered by the court in determining whether accessto the records should be granted in the context of civil litigation under this more stringent test: a.the person seeking the record and whether that person is a victim seeking damages or defending against damages in the civil lawsuit; b.the probative value of the record to the material issue in the civil litigation and in particular the precise nexus between any specificrecord and the specific issues arising in the context of the civil litigation; c.the extent to which the record is necessary for the proper administration of justice and in particular, whether records being sought arenecessary for the applicant in determining the material issues in the civil litigation and in advancing the civil litigation; d.the nature of the disposition for each of the young person's records being sought and the amount of time that has passed since theexpiry of the access period.

The access period is clearly a function of the outcome of the charge, which is relevant to the youth's privacyinterests in balancing competing policy concerns. Further, the longer the access period has remained closed, the greater the protection ofthat privacy; e.the young person's reasonable expectation of privacy in the particular information being sought. f.the potential impact of the production of the records on the specific young person; g.the potential impact of production on the integrity of Part Six of the YCJA, as informed by the principles set out in

section 3 of the Act. 70 The importance of the privacy interests of the young persons under

section 123 analysis cannot be overstated and should be givengreat weight. Under

section 123 analysis, the applicant must show that his interest in the records is sufficiently valid and substantial thatit displaces the young person's pre-existing privacy interests. [37] The test for matters outside the retention period is more onerous. The Applicant has established a valid interest in part of therecords as set out above. In this part, he must also establish a substantial interest. Although the Applicant has established that it is

desirable to have access to the records under s. 119(2)(s), he must establish here that it is necessary that access be granted in the interestof the proper administration of justice. The Applicant must also show that no other statute prohibits the disclosure of the record. [38] Again, the Applicant is seeking the records to assist in the civil action which involves the victim as a party. The information isprobative of the issue of whether the CAS has been negligent and that the children suffered damages as a result.

In my view, the recordsare necessary to illuminate the circumstances surrounding the involvement of the CAS but also the harm that a victim suffered. In myview, this is a substantial as well as valid interest [39] In many criminal cases, where an accused is charged with multiple offences, resolutions involve guilty pleas to some charges andwithdrawal of others. In this case, the charges arose out of a global set of circumstances with respect to the victim T.M.LP.

Thecircumstances of two of the charges being withdrawn upon a guilty plea to the charge of sexual assault is an important factor inexamining N.L.’s privacy interest, particularly where the applicant has met the test in s. 119 YCJA. This is not a situation where all of thecharges were withdrawn, nor where there were discreet facts for each of the charges laid.

No further information about N.L. or hisinvolvement in the Youth Criminal Justice system would be revealed as a result of allowing access to the records discussed above. [40] I take into account that, at the time of the bringing of the Youth Court application, 27 months had passed since the withdrawal ofthe two charges which is a considerable length of time but is attenuated by the other factors. [41] I note that, in this case, the parties to the litigation are already aware of the conviction of N.L. for sexual assault as they are thevictim and the CAS who previously received information.

In addition, the Applicant has not requested any presentence reports or s. 34assessments under the YCJA, nor any other confidential information about N.L. that would attract a more significant expectation ofprivacy. The impact on N.L., of the release of the records, is reduced in this circumstance. Similarly, there is no negative impact ofproduction on the integrity of Part Six of the YCJA, as informed by the principles set out in

section 3 of the Act. In my view, there is littlerisk in this case that N.L. will be stigmatized or labeled as a result of the release of these records. [42] After careful consideration and applying the factors set out in Boyer v. Huang, supra, the Applicant has met the more oneroustest under s. 23 of the Act for the release of some of the records relating to the withdrawal of the two charges. The Applicant has a validand substantial interest in the records. They are necessary for the proper administration of justice and not prohibited by another Act.

Records Containing Allegations Where the young Person was not Charged [43] This leaves the records regarding T.L.LP., from which no charges were laid.

Did this result from the use of extra judicialmeasures or are the allegations simply uncharged? [44] "Extrajudicial measures" are defined in s. 2 of the YCJA as, measures other than judicial proceedings under this Act used to deal with a young person alleged to have committed an offence andincludes extrajudicial sanctions. [45] S. 6 of the Act sets out that, A police officer shall, before starting judicial proceedings or taking any other measures under this Act against a young person alleged tohave committed an offence, consider whether it would be sufficient, having regard to the principles set out in sections 4 and 4.1, to takeno further action, warn the young person, administer a caution, if a program has been established under

section 7, or, with the consent ofthe young person, refer the young person to a program or agency in the community that may assist the young person not to commitoffences. [46] The records in question in this case are silent as to whether the police engaged in extrajudicial measures. The officer in this casemay have considered whether it would be sufficient to take no further action in which case the process would be described as extrajudicial measures.

I note that records relating to extrajudicial measures, further to s. 119(4) YCJA, may only be released to a restrictednumber of people for restricted specific purposes. If the records in this case have been dealt with by extra judicial measures, they are notdisclosable to the Applicant. [47] If the process is not extrajudicial measures and the young person was not charged are these records accessible? As set out above,s. 118 sets out that no-one shall have access to any youth records unless authorized by the Act.

S 119(1) states that the records are onlyaccessible up to the end of the access period set out in s. 119(2). S.119(2) does not reference an access period for these kinds of records. [48] There are two lines of thought in the jurisprudence. In R. v. J.B, 2008 ONCJ 208 , [2008] O.J. No. 1719, most recentlyfollowed in R. v. Greer, [2020] O.J. No. 512, Justice Borenstein determined that s. 119(2) acts as a limitation period on the accessibilityof records and, as there is no access period for non-actioned records, there is no limitation period and the records are thereforeaccessible.

The court then used the test set out in s. 123 to determine accessibility. [49] In R. v. A.B., [2015] O.J. No. 7113, recently followed in R. v. Gure, 2019 ONCJ 585, Justice Downes determined, … the test in s. 123, premised as it is on the records being subject to an access period in s. 119(2), does not apply to records for which, ashere, there is no defined access period. None of the occurrence reports in issue here resulted in charges being laid, so s. 123 does notapply: see R. v. R.L. [2008] O.J. No. 366 at para. 23 (CJ)

[ 50 ] Justice Loignon in R. v. Gure , ibid , sets out a helpful

summary of the principles and philosophy of the YCJA beginning at para. 8. Her Honour speaks of the enhanced substantive and procedural protections in the YCJA . 8 . . . The

preamble to the Act sets out the general philosophy in interpreting and applying it. Specifically recognized is a shared societal responsibility to address the developmental challenges and needs of young persons. The overall tenor of the Act is on effective rehabilitation and reintegration, where the most significant interventions are reserved for the most serious crimes.

Privacy is specifically acknowledged in the declaration of principle at s. 3(1)(b)(iii) in the following manner: The criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected. 9 A young person’s right to privacy was referenced by the Supreme Court of Canada in A.B. v. Bragg Communications Inc ., 2012 SCC 46 .

At paragraph 18 of the decision, the Court quoted observations made by Cohen, J. in Toronto Star Newspaper Limited v. Ontario, 2012 ONCJ 27 : The concern to avoid labelling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act . However, it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance.

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment , the court stated that privacy is worthy of constitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17).

These considerations apply equally if not more strongly in the case of young persons. …The protection of the privacy of young persons fosters respect for dignity, personal integrity and autonomy of the young person. [ 51 ] I note as well that s. 3(2) YCJA states the following;

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [ 52 ] Given the philosophy of the act and the direction on

interpretation, it is my view that records for which no charges were laid are inaccessible. Allowing access to these records would not be consistent with the purpose and principles of the YCJA , nor the high measure of privacy accorded to young persons. [ 53 ] No matter the reason for charges not being laid with respect to T.L.LP., whether because of extrajudicial measures or otherwise, these records are not accessible. Records to be released [ 54 ] Any part of a record be produced which refers to T.L.LP. is to be redacted from the records being made available.

The Crown will prepare a disk with only those parts of the audio or video to which I am allowing access as well making the Wagg redactions. In the alternative, if this is too difficult, I would be content if the Crown produced a transcript of the statements and redacted the transcripts. The Crown will provide the records to the Applicant’s counsel, Loretta Merritt, at Torkin, Manes LLP. [ 55 ] The following records only will be produced;

(1) Video interview and

summary of statement of S.L.,

(2) Video interview and

summary of statement of T.M.LP.,

(3) Video interview and

summary of statement of T. LP.,

(4) Video interview and

summary of statement of O.P.,

(5) Video interview and

summary of statement of M.L.,

(6) Witness statement and notes of D.C. Dylan Langille,

(7) Witness statement and notes of D.C. Victoria Loucks,

(8) Witness statement and notes of P.C. Bryan Patteson,

(9) Witness statement and notes of P.C Steven Skeaff,

(10) Untitled report regarding S.L. reporting abuse,

(11) Audio of CAS report to police, and

(12) Occurrence

Summary LP17097386 re sexual assault Restrictions [ 56 ] The following restrictions apply to the records; 1. The full restrictions on publication and dissemination and other protections contained in the YCJA continue to apply. 2. The records may only be used in the conduct of the civil lawsuit; 3. The young person, his father, the victim, the victim’s mother, father and their children as well as the litigation guardian will be identified by initials only on all documents produced by the parties where the records incorporate the information contained in the records; 4.

The records are to be maintained in conditions of strict confidentiality and shall not be reproduced, disclosed or published in any way except as may be required for the purposes of the civil proceeding; and 5. The records shall be destroyed by all parties at the expiry of the appeal period from any final order of the Superior Court of Justice in the civil suit or upon final settlement of the civil suit. Released: October 27, 2020 Signed: Justice W. Harris Bentley