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court docket of young offender protected
July 27, 2000

A recent decision from the Supreme Court of Canada considered the distribution to school boards of court dockets on pending trials of young offenders on specified offences. In F.N. (Re), the Court held that this practice contravenes the non-disclosure provisions of the Young Offenders Act. School Boards are not entitled to disclosure of such information unless the circumstances of a particular case bring it within one of thestatutory exceptions. The following summary of the case is drawn from the Court’s headnote of its judgment.

On the recommendation of its “Youth Justice Concerns Committee”, an advisory body with no statutory powers or duties, the Youth Court staff in St. John’sbegan routine distribution of its weekly Youth Court docket to local school boards. The docket of January 4, 1996 disclosed the name of the appellant, the fact that he was charged with two counts of assault and breach of probation, and the place and date of trial.

He objected that this administrative practice violated the non-disclosure provisions of the Young Offenders Act, and applied for an order of prohibition. His application to the Newfoundland Supreme Court, Trial Division, and subsequent appeal to the Newfoundland Court of Appeal were both dismissed.

The Supreme Court of Canada allowed the appeal. It is an important constitutional rule that the courts be open to the public and that their proceedings be accessible to all those who may have an interest. To this principle there are a number of exceptions where the public interest in confidentiality outweighs the public interest in openness. This balance is dealt with explicitly in the non-disclosure provisions of the Young Offenders Act.

Parliament has recognized that a young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence and maximizing the chances of rehabilitation for young offenders.

At the same time, the scheme of the Act does not attempt to achieve rehabilitation of the offender at the expense of public safety. The Act creates two distinct but mutually reinforcing regimes to control information about a young offender. The first set of provisions commences at s. 38(1) with a general prohibition that “no person shall publish by any means any report” identifying a young offender with an offence or proceeding under the Act. The second regime applies to the maintenance and use of court records found in s. 40 to s. 44. These provisions set out in considerable detail the type of records that may be kept, where they may be kept, and the circumstances in which they may be disclosed.

The respondent’s argument was that if the docket could be characterized as something other than a “record” or “report”, narrowly construed, its contents could be disseminated free of statutory restrictions. However, while neither term is defined in the Act, etymological niceties ought not to be allowed to overwhelm the clear purpose expressed by Parliament. What is important is not what the communication is called but the substance of what is communicated.

The nub of the statutory non-disclosure provisions is the avoidance of unauthorized disclosure of information that links the identity of the young person with a charge, proceeding or disposition under the Act. The interpretive exercise is therefore not directed at some formal classification of documents, but at the nature of the information sought to be disclosed. Where the prohibited link is not made, the ban does not apply.

The non-disclosure provisions of the Act were violated by the administrative practice of distributing dockets. The Youth Court docket necessarily links the name of the young person to a charge or proceeding. While the court docket, as a piece of paper, has a transient function, the information it contains is very much part of the court record, and its disclosure is prohibited unless the circumstances fall within the relevant exceptions set out in s. 44.1 of the Act. Parliament’s restrictions in s. 44.1(1)(k) were violated in the following respects: (1) disclosure was not authorized by a judge; (2) distribution was not limited to the board responsible for the appellant’s school; and (3) the information was distributed for school purposes and not for purposes related to the administration of justice.

Equally, school boards are not government agencies of the type that are responsible for the supervision or care of young persons in trouble with the law within the ambit of s. 44.1(1)(g). Nor was disclosure of the docket authorized under one of the enumerated exceptions to the general publication ban in s. 38 against linking young people to offences or proceedings under the Act. The preparation, use and disclosure of the docket in Youth Court is permitted by the Act pursuant to s. 38(1.1) because it occurs “in the course of the administration of justice” and the purpose is not to make the information known in the community, but distribution of the docket to the school boards was not authorized under that section because school boards have no general responsibility for the administration of justice.

Here, the dockets were provided for school board purposes. Neither can general distribution of the docket be validated on the basis of the “school board” exception. Section 38(1.13) permits disclosure of information to the representative of any school board or school where disclosure is necessary either to ensure compliance by the young person with a court order or to ensure the safety of others. Although schools may be called on to assist in ensuring compliance with a court order, there was no evidence that the school boards had such a role to play in respect of the appellant.

The purpose of ensuring safety would also support disclosure of a specific young person’s information to the school board, but the exemption does not authorize the release of information about all young persons identified on the docket list, whether or not they are a threat to safety of others and whether or not they attend school. The disclosure is over-inclusive because it includes young persons who present no safety risk at all and who may not be students and it is also under-inclusive because if there is a serious safety concern, it may not include enough information to enable the school to formulate appropriate remedial action.

Violent offences against people, e.g., assault, assault causing bodily harm, aggravated sexual assault, weapons offences, drugs and more serious property offences such as arson may clearly raise a sufficient safety concern for the safety of the young person as well as “staff, students or other persons” to justify notification to the board responsible for the student in question. There is nothing in the section that precludes the implementation of a general notification procedure provided the policy is properly tailored to the statutory requirements.