A civil proceeding was commenced by the Applicant, seeking damages in relation to a fire to the Applicant’s home against the “John Doe Respondents” (and others). The John Doe Respondents are young people who’s privacy rights are protected by the Youth Criminal Justice Act.
In these proceedings, the Applicant asked a Youth Court for access to any of the youth records of the John Doe Respondents that may exist.
JFCY represented one of the John Doe Respondents; our written and oral submissions focuses on what the correct legal framework ought to be when access is sought to a young person’s records. JFCY’s factum addresses jurisdiction, the staturory framework of the Youth Criminal Justice Act (YCJA), the correct interpretive lens to be applied in accordance with the principles of international law and case law.
In her decision, Justice O’Connell discussed the proper test to be applied under the YCJA when the record remains “open” under section 119 of the YCJA (see para 52-65) and when the record has been “closed” under section 123 of the YCJA(see para 66-78).
The test for access to “open” records under section 119 puts the onus on the Applicant to show they have a “valid interest” in the records being sought and that access to the records is “desirable in the interest of the proper administration of justice” (at para 55). For the valid interest, the Applicant “must articulate a factual and legal connection (nexus) between the material issues to be litigated in the lawsuit and the records being sought” (at para 59) and that access is “desirable in the interest of the proper administration of justice” (at para 62). Also highlighted was the “premium placed on the privacy interests of all young persons” involved in YCJA proceedings (at para 64). In this case, Justice O’Connell found that Applicant met the test for access of the “open” records.
The test for access to “closed” records under section 123 is more onerous and the Applicant must establish a “valid and substantial interest” in the records being sought (at para 67) and “show that the interest in the proper administration of justice ‘renders it necessary that access to the records be granted'”. The Applicant must also “show that no other statute prohibits disclosure” and “that the youth court judge must set out the purpose for which the records may be used” (at para 68). Justice O’Connell set out a set of factors to be considered (in para 69 of her decision) and held that the Applicant had met the requisite test for access and ordered that the Applicant be granted access to the “closed” records only for purposes of the civil lawsuit, that all young persons be identified by initials only, and that the records be destroyed by all parties at the expiry of the appeal period of any final order of the Superior Court of Justice; and that no other reproduction, disclosure or publication of the records is permitted.