Access to Records Relating to Youth Prosecutions

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General Principles

Part 6, comprising s. 110 to 129, of the YCJA govern the keeping and disclosing of records related to young offenders.

The purpose of the restrictions on access to records relating to youth prosecutions found in Part 6 is to "avoid the premature labeling of young offenders as outlaws" which would harm rehabilitation and re-integration.[1]

The predecessor Youth Offender Act similarly had a purpose that included protecting the privacy of the young offenders.[2]

  1. SL v NB, 2005 CanLII 11391 (ON CA) at para 35 ("the Act seeks to avoid the premature labeling of young offenders as outlaws and to thereby facilitate their rehabilitation and their reintegration into the law-abiding community")
    See also Toronto Star Newspaper Ltd. v Ontario, 2012 ONCJ 27 (CanLII) at paras 40 and 41
  2. R v Sheik-Qasim, 2007 CanLII 52983 (ON SC) at para 15

Records and Record-holders

Definition of Records
Section 2 of the YCJA defines "Record" as:

2.
...
record includes 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. (dossier)


YCJA

Search warrant materials are considered "court records", not police or government records.[1]

Designated Record-holder
Sections 114 to 116 designate which entities may possess YCJA records:[2]

Records That May Be Kept
Youth justice court, review board and other courts
114 A youth justice court, review board or any court dealing with matters arising out of proceedings under this Act may keep a record of any case that comes before it arising under this Act.


YCJA

Police Records

Police records
115 (1) A record relating to any offence alleged to have been committed by a young person, including the original or a copy of any fingerprints or photographs of the young person, may be kept by any police force responsible for or participating in the investigation of the offence.
Extrajudicial measures
(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons.
Police records
(2) When a young person is charged with having committed an offence in respect of which an adult may be subjected to any measurement, process or operation referred to in the Identification of Criminals Act, the police force responsible for the investigation of the offence may provide a record relating to the offence to the Royal Canadian Mounted Police. If the young person is found guilty of the offence, the police force shall provide the record.
Records held by R.C.M.P.
(3) The Royal Canadian Mounted Police shall keep the records provided under subsection (2) in the central repository that the Commissioner of the Royal Canadian Mounted Police may, from time to time, designate for the purpose of keeping criminal history files or records of offenders or keeping records for the identification of offenders.
2002, c. 1, s. 115; 2012, c. 1, s. 190.


YCJA

Government Records

Government records
116 (1) A department or an agency of any government in Canada may keep records containing information obtained by the department or agency

(a) for the purposes of an investigation of an offence alleged to have been committed by a young person;
(b) for use in proceedings against a young person under this Act;
(c) for the purpose of administering a youth sentence or an order of the youth justice court;
(d) for the purpose of considering whether to use extrajudicial measures to deal with a young person; or
(e) as a result of the use of extrajudicial measures to deal with a young person.

Other records
(2) A person or organization may keep records containing information obtained by the person or organization

(a) as a result of the use of extrajudicial measures to deal with a young person; or
(b) for the purpose of administering or participating in the administration of a youth sentence.


YCJA

  1. Telegraph Journal v QCT, 2010 NBPC 29 (CanLII) at para 22
  2. SL v NB, 2005 CanLII 11391 (ON CA) at para 37

Prohibited Access to Records

Section 118(1) requires that no person be permitted access certain types of records unless authorized by the YCJA:

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.
Exception for employees
(2) No person who is employed in keeping or maintaining records referred to in subsection (1) is restricted from doing anything prohibited under subsection (1) with respect to any other person so employed.


YCJA

The prohibition only applies to those records that fall into s. 114 to 116.

Where Regime Does Not Apply
Restrictions under s. 118 of the YCJA do not apply to youth offenders we are subject to an adult sentence:

Exception — adult sentence
117 Sections 118 to 129 do not apply to records kept in respect of an offence for which an adult sentence has been imposed once the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed and the appeal court has upheld an adult sentence. The record shall be dealt with as a record of an adult and, for the purposes of the Criminal Records Act, the finding of guilt in respect of the offence for which the record is kept is deemed to be a conviction.


YCJA

Criminal Records

Where the youth sentence is not a discharge, this record "in effect" converts to an adult record where there is a conviction for an adult offence within the "access period".[1]

  1. see s. 119(9)
    R v P.J.S., 2008 NSCA 111 (CanLII) at para 15

Persons Able to Access Records

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;
(f) any adult assisting the young person under subsection 25(7), 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;
(g) any peace officer for
(i) law enforcement purposes, or
(ii) any purpose related to the administration of the case to which the record relates, during the course of proceedings against the young person or the term of the youth sentence;
(h) a judge, court or review board, for any purpose relating to proceedings against the young person, or proceedings against the person after he or she becomes an adult, in respect of offences committed or alleged to have been committed by that person;
(i) the provincial director, or the director of the provincial correctional facility for adults or the penitentiary at which the young person is serving a sentence;
(j) a person participating in a conference or in the administration of extrajudicial measures, if required for the administration of the case to which the record relates;
(k) a person acting as ombudsman, privacy commissioner or information commissioner, whatever his or her official designation might be, who in the course of his or her duties under an Act of Parliament or the legislature of a province is investigating a complaint to which the record relates;
(l) a coroner or a person acting as a child advocate, whatever his or her official designation might be, who is acting in the course of his or her duties under an Act of Parliament or the legislature of a province;
(m) a person acting under the Firearms Act;
(n) a member of a department or agency of a government in Canada, or of an organization that is an agent of, or under contract with, the department or agency, who is
(i) acting in the exercise of his or her duties under this Act,
(ii) engaged in the supervision or care of the young person, whether as a young person or an adult, or in an investigation related to the young person under an Act of the legislature of a province respecting child welfare,
(iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person, whether as a young person or an adult,
(iv) administering a prohibition order made under an Act of Parliament or the legislature of a province, or
(v) administering a youth sentence, if the young person has been committed to custody and is serving the custody in a provincial correctional facility for adults or a penitentiary;
(o) a person, for the purpose of carrying out a criminal record check required by the Government of Canada or the government of a province or a municipality for purposes of employment or the performance of services, with or without remuneration;
(p) an employee or agent of the Government of Canada, for statistical purposes under the Statistics Act;
(q) an accused or his or her counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer and defence;
(r) a person or a member of a class of persons designated by order of the Governor in Council, or the lieutenant governor in council of the appropriate province, for a purpose and to the extent specified in the order; and
(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 extent directed by the judge, if the judge is satisfied that access to the record is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.


YCJA

Access to record by young person
124 A young person to whom a record relates and his or her counsel may have access to the record at any time.


YCJA

Access for the Administration of Justice

Section 119 (s)(ii) permits access by anyone where it is "desirable in the interests of the proper administration of justice".

This will often be how members of the media will attempt to gain access to records.[1]

Access under s. 119(s)(ii) is a discretionary decision on the part of the judge and so should comply with the Mentuck/Dagenais requirements for restrictions on the open court principles.[2] However, given the context of the YCJA, the application of the Mentuck/Dagenais is to be applied differently.[3]

There is no presumption of access to youth records.[4]

Manner of Access
A party who is permitted to access under s. 119(1)(s) the phrase "the extent directed by the judge" permits the judge to set limitations on the form and manner of access.[5] This can include restrictions such as:[6]

  • permitting inspection of the record to allow note-taking;
  • providing a copy of the record and requiring it be returned to the Court or destroyed at a particular time;
  • providing a copy of the record without imposing any discretionary conditions;
  1. e.g. see Toronto Star Newspaper Ltd. v Ontario, 2012 ONCJ 27 (CanLII) per Cohen PCJ - access refused
    R v A.Y.D., 2011 ABQB 590 (CanLII) - access post-stay of proceedings granted
    Halifax Herald Limited v Sparks, 1995 CanLII 9320 (NS SC) - found media have valid interest in access
  2. Toronto Star v Ontario, ibid. at para 8
  3. R v AYD, 2011 ABQB 590 (CanLII) at para 23
  4. AYD, ibid. at para 25
  5. R v NY, 2008 CanLII 23498 (ON SC) at para 9
  6. NY, ibid. at para 9

Duration of Accessing Records

The access period depends on the disposition, stating under s. 119(2):

119.
...
Period of access
(2) The period of access referred to in subsection (1) is

(a) if an extrajudicial sanction is used to deal with the young person, the period ending two years after the young person consents to be subject to the sanction in accordance with paragraph 10(2)(c);
(b) if the young person is acquitted of the offence otherwise than by reason of a verdict of not criminally responsible on account of mental disorder, the period ending two months after the expiry of the time allowed for the taking of an appeal or, if an appeal is taken, the period ending three months after all proceedings in respect of the appeal have been completed;
(c) if the charge against the young person is dismissed for any reason other than acquittal, the charge is withdrawn, or the young person is found guilty of the offence and a reprimand is given, the period ending two months after the dismissal, withdrawal, or finding of guilt;
(d) if the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, at the end of that period;
(e) if the young person is found guilty of the offence and the youth sentence is an absolute discharge, the period ending one year after the young person is found guilty;
(f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;
(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;
(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;
(i) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an offence punishable on summary conviction committed when he or she was a young person, the latest of
(i) the period calculated in accordance with paragraph (g) or (h), as the case may be, and
(ii) the period ending three years after the youth sentence imposed for that offence has been completed; and
(j) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an indictable offence committed when he or she was a young person, the period ending five years after the sentence imposed for that indictable offence has been completed.

...
2002, c. 1, s. 119; 2012, c. 1, ss. 157, 191(F).


YCJA

Duration of Access Clock Starting Time Section
2 years When the offender consents to extrajudicial sanctions 119(2)(a)
2 months on acquittal, after appeal period expires 119(2)(b)
3 months on acquittal, after appeal proceedings are complete 119(2)(b)
2 months withdrawn or reprimand after finding of guilt 119(2)(c)
1 year charges are stayed 119(2)(d)
1 year on finding of guilt, absolute discharge 119(2)(e)
3 years on finding of guilt, conditional discharge 119(2)(f)
3 years on completion of sentence for a summary conviction offence 119(2)(g)
5 years on completion of sentence for a indictable conviction offence 119(2)(h)
3 to 5 years on completion of sentence for a subsequent summary conviction offence 119(2)(i)
5 years on completion of sentence for a subsequent indictable conviction offence 119(2)(j)

Effect of Expiration
Where a period of access has expired, the records may still be accessed by order of a youth justice.[1]

  1. See s. 123(1) of the YCJA
    Also F.(K.) v Peel Region Police Services Board, 2008 ONCJ 382(*no link) at para 20
    R.v. J.K., [2009] O.J. No. 4884

Subsequent Adult Conviction

A youth conviction (not including discharges) will effectively be converted to an adult offence if a subsequent adult offence is committed during the access period under s. 119(9).[1]

119
...
Application of usual rules
(9) If, during the period of access to a record under any of paragraphs (2)(g) to (j), the young person is convicted of an offence committed when he or she is an adult,

(a) section 82 (effect of absolute discharge or termination of youth sentence) does not apply to the young person in respect of the offence for which the record is kept under sections 114 to 116;
(b) this Part no longer applies to the record and the record shall be dealt with as a record of an adult; and
(c) for the purposes of the Criminal Records Act, the finding of guilt in respect of the offence for which the record is kept is deemed to be a conviction.


...


  1. R v P.J.S., 2008 NSCA 111 (CanLII) at para 15

Disclosure of Records

Disclosure by peace officer during investigation
125 (1) A peace officer may disclose to any person any information in a record kept under section 114 (court records) or 115 (police records) that it is necessary to disclose in the conduct of the investigation of an offence.

Disclosure by Attorney General
(2) The Attorney General may, in the course of a proceeding under this Act or any other Act of Parliament, disclose the following information in a record kept under section 114 (court reports) or 115 (police records):

(a) to a person who is a co-accused with the young person in respect of the offence for which the record is kept, any information contained in the record; and
(b) to an accused in a proceeding, if the record is in respect of a witness in the proceeding, information that identifies the witness as a young person who has been dealt with under this Act.

Information that may be disclosed to a foreign state
(3) The Attorney General or a peace officer may disclose to the Minister of Justice of Canada information in a record that is kept under section 114 (court records) or 115 (police records) to the extent that it is necessary to deal with a request to or by a foreign state under the Mutual Legal Assistance in Criminal Matters Act, or for the purposes of any extradition matter under the Extradition Act. The Minister of Justice of Canada may disclose the information to the foreign state in respect of which the request was made, or to which the extradition matter relates, as the case may be.
Disclosure to insurance company
(4) A peace officer may disclose to an insurance company information in a record that is kept under section 114 (court records) or 115 (police records) for the purpose of investigating a claim arising out of an offence committed or alleged to have been committed by the young person to whom the record relates.
Preparation of reports
(5) The provincial director or a youth worker may disclose information contained in a record if the disclosure is necessary for procuring information that relates to the preparation of a report required by this Act.
Schools and others
(6) The provincial director, a youth worker, the Attorney General, a peace officer or any other person engaged in the provision of services to young persons may disclose to any professional or other person engaged in the supervision or care of a young person — including a representative of any school board or school or any other educational or training institution — any information contained in a record kept under sections 114 to 116 if the disclosure is necessary

(a) to ensure compliance by the young person with an authorization under section 91 or an order of the youth justice court;
(b) to ensure the safety of staff, students or other persons; or
(c) to facilitate the rehabilitation of the young person.

Information to be kept separate
(7) A person to whom information is disclosed under subsection (6) shall

(a) keep the information separate from any other record of the young person to whom the information relates;
(b) ensure that no other person has access to the information except if authorized under this Act, or if necessary for the purposes of subsection (6); and
(c) destroy their copy of the record when the information is no longer required for the purpose for which it was disclosed.

Time limit
(8) No information may be disclosed under this section after the end of the applicable period set out in subsection 119(2) (period of access to records).


YCJA

Records in the custody, etc., of archivists
126 When records originally kept under sections 114 to 116 are under the custody or control of the Librarian and Archivist of Canada or the archivist for any province, that person may disclose any information contained in the records to any other person if

(a) a youth justice court judge is satisfied that the disclosure is desirable in the public interest for research or statistical purposes; and
(b) the person to whom the information is disclosed undertakes not to disclose the information in any form that could reasonably be expected to identify the young person to whom it relates.


2002, c. 1, s. 126; 2004, c. 11, s. 48.


YCJA

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.
Time limit
(4) No information may be disclosed under subsection (1) after the end of the applicable period set out in subsection 119(2) (period of access to records).


YCJA

Destruction of Records

Effect of end of access periods
128. (1) Subject to sections 123, 124 and 126, after the end of the applicable period set out in section 119 or 120 no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985.

Disposal of records
(2) Subject to paragraph 125(7)(c), any record kept under sections 114 to 116, other than a record kept under subsection 115(3), may, in the discretion of the person or body keeping the record, be destroyed or transmitted to the Librarian and Archivist of Canada or the archivist for any province, at any time before or after the end of the applicable period set out in section 119.

Disposal of R.C.M.P. records
(3) All records kept under subsection 115(3) shall be destroyed or, if the Librarian and Archivist of Canada requires it, transmitted to the Librarian and Archivist, at the end of the applicable period set out in section 119 or 120.

Purging CPIC
(4) The Commissioner of the Royal Canadian Mounted Police shall remove a record from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police at the end of the applicable period referred to in section 119; however, information relating to a prohibition order made under an Act of Parliament or the legislature of a province shall be removed only at the end of the period for which the order is in force.

Exception
(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect.

Authority to inspect
(6) The Librarian and Archivist of Canada may, at any time, inspect records kept under sections 114 to 116 that are under the control of a government institution as defined in section 2 of the Library and Archives of Canada Act, and the archivist for a province may at any time inspect any records kept under those sections that the archivist is authorized to inspect under any Act of the legislature of the province.

Definition of “destroy”
(7) For the purposes of subsections (2) and (3), “destroy”, in respect of a record, means

(a) to shred, burn or otherwise physically destroy the record, in the case of a record other than a record in electronic form; and
(b) to delete, write over or otherwise render the record inaccessible, in the case of a record in electronic form.

2002, c. 1, s. 128; 2004, c. 11, s. 49; 2012, c. 1, s. 159.


YCJA

The court has jurisdiction under s. 128(2) to consider whether to order the destruction of records before the period set out in s. 119.[1]

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.


YCJA

  1. R v L.T.C., 2009 NLCA 55 (CanLII)

Access to Police Records

Access to R.C.M.P. records
120 (1) The following persons may, during the period set out in subsection (3), be given access to a record kept under subsection 115(3) in respect of an offence set out in the schedule:

(a) the young person to whom the record relates;
(b) the young person’s counsel, or any representative of that counsel;
(c) an employee or agent of the Government of Canada, for statistical purposes under the Statistics Act;
(d) 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 extent directed by the judge, if the judge is satisfied that access is desirable in the public interest for research or statistical purposes;
(e) the Attorney General or a peace officer, when the young person is or has been charged with another offence set out in the schedule or the same offence more than once, for the purpose of investigating any offence that the young person is suspected of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or as an adult;
(f) the Attorney General or a peace officer to establish the existence of an order in any offence involving a breach of the order; and
(g) any person for the purposes of the Firearms Act.


YCJA


Discharge

Effect of Termination of Youth Sentence
Effect of absolute discharge or termination of youth sentence
82 (1) Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect, other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act, the young person is deemed not to have been found guilty or convicted of the offence except that

(a) the young person may plead autrefois convict in respect of any subsequent charge relating to the offence;
(b) a youth justice court may consider the finding of guilt in considering an application under subsection 64(1) (application for adult sentence);
(c) any court or justice may consider the finding of guilt in considering an application for judicial interim release or in considering what sentence to impose for any offence; and
(d) the Parole Board of Canada or any provincial parole board may consider the finding of guilt in considering an application for conditional release or for a record suspension under the Criminal Records Act.

Disqualifications removed
(2) For greater certainty and without restricting the generality of subsection (1), an absolute discharge under paragraph 42(2)(b) or the termination of the youth sentence or disposition in respect of an offence for which a young person is found guilty removes any disqualification in respect of the offence to which the young person is subject under any Act of Parliament by reason of a finding of guilt.
Applications for employment
(3) No application form for or relating to the following shall contain any question that by its terms requires the applicant to disclose that he or she has been charged with or found guilty of an offence in respect of which he or she has, under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, been discharged absolutely, or has completed the youth sentence under this Act or the disposition under the Young Offenders Act:

(a) employment in any department, as defined in section 2 of the Financial Administration Act;
(b) employment by any Crown corporation, as defined in section 83 of the Financial Administration Act;
(c) enrolment in the Canadian Forces; or
(d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

Finding of guilt not a previous conviction
(4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

(a) [Repealed, 2012, c. 1, s. 188]
(b) the purpose of determining the adult sentence to be imposed.

2002, c. 1, s. 82; 2012, c. 1, ss. 156, 160, 188.


See Also