Tortfeasor (Under 18)

Statutory Restrictions on Use of Youth Information

Education Act, R.S.O. 1990

Duties of principal
265 (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,

(a) to maintain proper order and discipline in the school;

...

(d) in accordance with this Act, the regulations and the guidelines issued by the Minister, to collect information for inclusion in a record in respect of each pupil enrolled in the school and to establish, maintain, retain, transfer and dispose of the record;

Pupil records

266 (1) In this section, except in subsection (12),

“record”, in respect of a pupil, means a record under clause 265 (1) (d). 1991, c. 10, s. 7 (1); 2006, c. 10, s. 35 (1).

Pupil records privileged

(2) A record is privileged for the information and use of supervisory officers and the principal, teachers and designated early childhood educators of the school for the improvement of instruction and other education of the pupil, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil. R.S.O. 1990, c. E.2, s. 266 (2); 1991, c. 10, s. 7 (2); 2006, c. 10, s. 35 (2, 3); 2010, c. 10, s. 18.

Information to medical officer of health

(2.1) The principal of a school shall, upon request by the medical officer of health serving the area in which the school is located, give that medical officer of health the following information in respect of pupils enrolled in the school:

1. The pupil’s name, address and telephone number.

2. The pupil’s birthdate.

3. The name, address and telephone number of the pupil’s parent or guardian. 1991, c. 10, s. 7 (3).

Right of parent and pupil

(3) A pupil, and his or her parent or guardian where the pupil is a minor, is entitled to examine the record of such pupil.

(4) Where, in the opinion of a pupil who is an adult, or of the parent or guardian of a pupil who is a minor, information recorded upon the record of the pupil is,

(a) inaccurately recorded; or

(b) not conducive to the improvement of instruction of the pupil,

such pupil, parent or guardian, as the case may be, may, in writing, request the principal to correct the alleged inaccuracy in, or to remove the impugned information from, such record.

Reference to supervisory officer

(5) If the principal refuses to comply with a request under subsection (4), the pupil, parent or guardian who made the request may, in writing, require the principal to refer it to the appropriate supervisory officer. 2006, c. 10, s. 35 (4).

(5.1) The supervisory officer shall consider the request and shall,

(a) require the principal to comply with the request; or

(b) submit the record and the request to a person designated by the Minister. 2006, c. 10, s. 35 (4).

Hearing

(5.2) Subject to subsection (5.3), on receiving the record and request under clause (5.1) (b), the designated person shall hold a hearing, at which the principal and the person who made the request have the rights of parties, and the designated person shall decide the matter, and his or her decision is final and binding. 2006, c. 10, s. 35 (4).

Exception

(5.3) The designated person may refuse to hold a hearing if,

(a) in his or her opinion, the request is trivial, frivolous or vexatious; or

(b) the request is for the removal of information from a record and, in his or her opinion, a guideline made under paragraph 27 of subsection 8 (1) requires that the information be included in the record. 2006, c. 10, s. 35 (4).

(...)

Secrecy Re Contents

(10) Except as permitted under this section, every person shall preserve secrecy in respect of the content of a record that comes to the person’s knowledge in the course of his or her duties or employment, and no such person shall communicate any such knowledge to any other person except,

(a) as may be required in the performance of his or her duties; or

(b) with the written consent of the parent or guardian of the pupil where the pupil is a minor; or

(c) with the written consent of the pupil where the pupil is an adult. R.S.O. 1990, c. E.2, s. 266 (10).

Youth Criminal Justice Act (S.C. 2002, c. 1)

14 (1) Despite any other Act of Parliament but subject to the Contraventions Act and the National Defence Act, a youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he or she was a young person, and that person shall be dealt with as provided in this Act.

Young persons over the age of eighteen years

(5) This Act applies to persons eighteen years old or older who are alleged to have committed an offence while a young person.

Identity of offender not to be published

110 (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.

Limitation

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence; or

(b) [Repealed, 2019, c. 25, s. 379]

(c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Exception

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Identity of victim or witness not to be published

111 (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.

Exception

(2) Information that would serve to identify a child or young person referred to in subsection (1) as having been a victim or a witness may be published, or caused to be published, by

(a) that child or young person after he or she attains the age of eighteen years or before that age with the consent of his or her parents; or

(b) the parents of that child or young person if he or she is deceased.

Application for leave to publish

(3) The youth justice court may, on the application of a child or a young person referred to in subsection (1), make an order permitting the child or young person to publish information that would identify him or her as having been a victim or a witness if the court is satisfied that the publication would not be contrary to his or her best interests or the public interest.

No access unless authorized

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 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.

Persons having access to records

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 kept under sections 115 and 116:

(a) the young person to whom the record relates;

(b) the young person’s counsel, or any representative of that counsel;

(c) the Attorney General;

(d) the victim of the offence or alleged offence to which the record relates;

(e) the parents of the young person, during the course of any proceedings relating to the offence or alleged offence to which the record relates or during the term of any youth sentence made in respect of the offence;

Disclosure with court order

127 (1) The youth justice court may, on the application of the provincial director, the Attorney General or a peace officer, make an order permitting the applicant to disclose to the person or persons specified by the court any information about a young person that is specified, if the court is satisfied that the disclosure is necessary, having regard to the following circumstances:

(a) the young person has been found guilty of an offence involving serious personal injury;

(b) the young person poses a risk of serious harm to persons; and

(c) the disclosure of the information is relevant to the avoidance of that risk.

Opportunity to be heard

(2) Subject to subsection (3), before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person and the Attorney General an opportunity to be heard.

Ex parte application

(3) An application under subsection (1) may be made ex parte by the Attorney General where the youth justice court is satisfied that reasonable efforts have been made to locate the young person and that those efforts have not been successful.

No subsequent disclosure

129 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.

Case Law

Persaud v. Toronto District School Board, 2008 HRTO 92 (CanLII)

[25] During the examination-in-chief of the complainant’s brother by Commission counsel, counsel for the complainant raised an objection as an officer of the court as to whether evidence about the witness’s involvement with the police was being given in violation of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). This immediate issue was resolved on the basis that the witness had now attained the age of 18 years, and therefore could choose to publish any information that would identify him as having been dealt with under the YCJA: see s. 110(3).

[30] As indicated above, this exception was accepted by this Tribunal and by all counsel as enabling the complainant’s brother, who is now an adult, to testify about his own dealings with the police. As submitted by the respondents, it would be absurd if a party was able to rely upon this provision to call an individual to testify and make allegations about how they were treated by the police in furtherance of allegations of racial discrimination, and yet prevent the police from testifying in response. In my view, by testifying and putting these allegations in issue in this proceeding, the complainant’s brother has “caused to be published” any relevant evidence required to respond to these allegations, including the testimony of the police officers by whom he was questioned and any notes or records they may have made in relation to this questioning.

[31] The leading of this evidence by the respondents also does not run afoul of the prohibition in s. 118(1) of the YCJA (assuming without deciding that any records the officers may have made involved the complainant’s brother having been “dealt with” under the YCJA), as s. 118(1) creates an express exception where disclosure is “authorized” under the YCJA. Accordingly, again without needing to decide whether the complainant’s brother in fact was dealt with under the YCJA, I find that the complainant’s brother published his own information about his dealings with the police relevant to this matter and caused to be published any relevant evidence required to respond to these allegations, as authorized by s. 110(3) of the YCJA and within the scope of the exception created by s. 118(1) of the YCJA.

[32] In making this determination, I am mindful of the decision of the Ontario Court of Appeal in S.L. v. N.B. (2005), 2005 CanLII 11391 (ON CA), 195 C.C.C. (3d) 481, which holds that a Youth Court judge has sole jurisdiction with regard to determining issues of access to records under the YCJA. That case, however, dealt with a situation where the victim of an alleged crime committed by several young persons sought to obtain access to YCJA records as part of the civil discovery process in furtherance of a civil lawsuit filed against these young persons. No issue was raised in that case as to the potential applicability of s. 110(3) of the YCJA, as the young persons involved had not published or caused to be published in any way their having been dealt with under that Act. In my view, this situation is entirely distinguishable from the situation in the instant case where the young person himself has published the information at issue, and thereby has caused to be published any relevant evidence required to respond.

[33] Finally, in her reply submissions, counsel for the complainant takes the position that s. 110(3) of the YCJA is restricted only to allow publication of a young person’s name or identity, and not information contained in records or presumably any other information about the young person being dealt with under that Act. No authority is cited for this proposition. This submission is contradicted by the clear wording of s. 110(3) itself, which authorizes publication of “information that would identify him or her as having been dealt with under this Act” (emphasis added) and is not restricted just to the young person’s name or identity.

[40] The complainant’s OSR has been filed with the Tribunal as part of volume 1 of the respondents’ Book of Documents, which has been marked as Exhibit 2 to this proceeding. While s. 266(2) of the Education Act provides that pupil records are privileged and are not admissible “in any trial, inquest, inquiry, examination, hearing or other proceeding”, an exception has been created where the pupil is an adult and has provided his written permission. In this case, while no such written permission has been filed with the Tribunal, these documents have been admitted into evidence without any objection being raised by the complainant (except in relation to pre-high school documents, as addressed above). Nonetheless, given the clear language of s. 266(2) of the Education Act, I hereby require the complainant to provide his written permission to the Tribunal to admit these documents.

[41] As part of their submissions in support of their request for a sealing order and publication ban, the respondents were asked to specifically identify what documents such an order would apply to. None of the documents identified by the respondents has been identified as forming part of any student’s OSR, and my review of these documents does not indicate that they are part of any student’s OSR as defined by the Ministry’s guideline. In the event that I may be incorrect in this and out of an abundance of caution, I hereby ask the respondents to identify any documents submitted into evidence that form part of any student’s OSR (other than the complainant’s) and I am prepared to re-consider the respondents’ request in relation to any such documents at that time.

[42] With regard to documents that do not form part of any student’s OSR, I find that the statutory privilege in s. 266 of the Education Act has no application, and accordingly I am not prepared to issue a sealing order or publication ban on the basis of that provision.

S.L. v. N.B., 2005 CanLII 11391 (ON CA)

[55] My conclusion that the YCJA provides the exclusive means by which access may be obtained to documents which constitute records under the Act is consistent with the conclusion arrived at in B.G. v. British Columbia, 2002 BCCA 69 (CanLII), (2002) B.C.J. No. 168 at para. 53 (C.A.). In that case, the Attorney General was a party to ongoing civil litigation. The court held that the superior court judge who was case managing the civil litigation could not compel production of records under the Young Offenders Act, the predecessor legislation to the YCJA. The court held that access to records made and kept under the Young Offenders Act could be gained only through the access provisions of that Act which required an application to a youth court judge.

[60] Given the position of the respondents, I can address this constitutional issue in a summary fashion. It has been authoritatively held that Parliament can create a discrete criminal justice system for young offenders and vest exclusive jurisdiction over that system in a court other than a superior court of general jurisdiction: Reference re Young Offenders Act, s. 2 (P.E.I.) (1991), 1991 CanLII 11713 (SCC), 62 C.C.C. (3d) 385 (S.C.C.). It follows that a constitutional grant of jurisdiction over access to records created by that system can be vested in the court having overall responsibility for the young offenders criminal justice system. Nor does the grant of exclusive jurisdiction over access to those records offend the constitutional principles underlying s. 96 of the Constitution Act 1867. As Cory J.A. observed in Cook, Parliament and provincial legislatures can validly limit access by civil litigants to documents in the possession of entities that are not parties to that litigation. While such legislation places some restraint on the ability of litigants to obtain relevant information, it serves other equally valid public policy concerns: see Babcock v. Canada (Attorney General), 2002 SCC 57 (CanLII), (2002) 3 S.C.R. 3 at paras. 58-60. These limits do not strike at the core of the superior court’s judicial functions.

[61] The YCJA provisions giving the youth justice court exclusive jurisdiction over requests for access to records do not constitute an unconstitutional infringement on the jurisdiction of the Superior Court.

(c) Did Belleghem J. err in imposing a “Wagg” vetting order?

[62] My conclusion that questions of access are for the youth justice court renders this question moot. I add, however, that whether an access order is made under the YCJA or a production order is made under rule 30.10, courts have the power to take steps necessary to ensure that legitimate privacy concerns are protected until those with an interest in maintaining privacy have an opportunity to make submissions relating to access requests.