F.N. (Re)

F.N. (Re)
Collection
Supreme Court Judgments
Date
2000-07-20
Neutral citation
2000 SCC 35
Report
[2000] 1 SCR 880
Case number
26805
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Newfoundland and Labrador
Subjects
Criminal law
Notes
SCC Case Information: 26805
Decision Content
F.N. (Re), [2000] 1 S.C.R. 880
F.N. Appellant
v.
Her Majesty The Queen First Respondent
and
Roman Catholic School Board for St. John’s Second
Respondent
and
Avalon Consolidated School Board Third Respondent
and
Canadian Foundation for Children, Youth and the Law Intervener
Indexed as: F.N. (Re)
Neutral citation: 2000 SCC 35.
File No.: 26805.
1999: November 3; 2000: July 20.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for newfoundland
Criminal law -- Young Offenders -- Confidentiality -- Non-disclosure -- Youth Court records -- Youth Court routinely distributing copies of weekly Youth Court docket to local school boards -- Whether Youth Court exceeded its jurisdiction -- Whether distribution of Youth Court docket violated non-publication and non-disclosure requirements of Young Offenders Act -- Young Offenders Act, R.S.C., 1985, c. Y-1, s. 38 , 40 to 46 .
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’s began 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.
Held: The appeal should be allowed.
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 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.
Cases Cited
Referred to: R. v. T. (V.), [1992] 1 S.C.R. 749; Re Southam Inc. and The Queen (1984), 48 O.R. (2d) 678, aff’d (1986), 53 O.R. (2d) 663, leave to appeal refused, [1986] 1 S.C.R. xiv; R. v. M. (J.J.), [1993] 2 S.C.R. 421; R. v. M. (E.H.B.) (1996), 106 C.C.C. (3d) 535; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Smith, Judge v. Daily Mail Publishing Co., 443 U.S. 97 (1979); R. v. M. (M.R.), [1998] 3 S.C.R. 393; Ontario (Solicitor General) v. Ontario (Information and Privacy Commissioner), [1996] O.J. No. 2218 (QL); R. v. N. (K.) (1989), 51 C.C.C. (3d) 404; R. v. A.M.M., [1994] O.J. No. 1178 (QL); Scarlett Heights Collegiate Institute v. K.M., [1995] O.J. No. 3750 (QL); Re Peel Board of Education and B (1987), 59 O.R. (2d) 654; Re Smith and Clerk of Youth Court (1986), 31 C.C.C. (3d) 27; R. v. H.E.A., [1984] O.J. No. 707 (QL); Re T.I. (1985), 13 W.C.B. 494; Person Unknown v. S. (M.) (1986), 43 M.V.R. 306; F.G. v. Board of Education of Scarborough (1994), 68 O.A.C. 308; H. (G.) v. Shamrock School Division No. 38 (Sask.) Board of Education, [1987] 3 W.W.R. 270; R.G. (Re), [1999] B.C.J. No. 1106 (QL).
Statutes and Regulations Cited
Bill C-3, The Youth Criminal Justice Act, 2nd Sess., 36th Parl., 1999 (second reading 23 November 1999).
Criminal Code, R.S.C., 1985, c. C-46, s. 266 (b).
Young Offenders Act, R.S.C., 1985, c. Y-1 [am. c. 24 (2nd Supp.)], ss. 2 “young person”, 3 [am. 1995, c. 19, s. 1], 38 [idem, s. 27 ; idem, c. 39, s. 184], 40, 41 [repl. 1995, c. 19, s. 28], 43, 44.1 [am. 1992, c. 1, s. 143 (Sch. VI, item 21); am. 1995, c. 19, s. 30; c. 27, s. 2; c. 39, s. 186], 46.
Authors Cited
Bala, Nicholas. Young Offenders Law. Concord, Ont.: Irwin Law, 1997.
Bala, Nicholas, and Mary-Anne Kirvan. “The Statute: Its Principles and Provisions and Their Interpretation by the Courts”. In Alan W. Leschied, Peter G. Jaffe and Wayne Willis, eds., The Young Offenders Act: A Revolution in Canadian Juvenile Justice. Toronto: University of Toronto Press, 1991.
Canada. Solicitor General. Record-keeping under the Young Offenders Act: A Guide. Ottawa: Young Offenders Directorate, Policy Branch, Secretariat, Ministry of the Solicitor General of Canada, 1986.
Platt, Priscilla. Young Offenders Law in Canada, 2nd ed. Markham, Ont.: Butterworths, 1995.
United Nations. General Assembly. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, A/RES/40/33, November 29, 1985, Annex, Rule 8.
APPEAL from a judgment of the Newfoundland Court of Appeal (1998), 163 Nfld. & P.E.I.R. 154, 503 A.P.R. 154, 126 C.C.C. (3d) 114, [1998] N.J. No. 126 (QL), dismissing the appellant’s appeal from a decision of the Newfoundland Supreme Court, Trial Division (1996), 142 Nfld. & P.E.I.R. 31, 445 A.P.R. 31, [1996] N.J. No. 150 (QL), dismissing his application for an order of prohibition. Appeal allowed.
Joan Dawson, for the appellant.
Bernard Coffey, Q.C., for the respondent Her Majesty the Queen.
R. Wayne Bruce, for the respondents the Roman Catholic School Board for St. John’s and the Avalon Consolidated School Board.
Cheryl Milne, for the intervener.
The judgment of the Court was delivered by
1 Binnie J. -- The Provincial Court of Newfoundland, Youth Court Division, in St. John’s, routinely forwards the Youth Court docket to all of the school boards within its jurisdiction. Its docket of January 4, 1996 disclosed the name of the appellant, the fact he was charged with two counts of assault and breach of probation, plus the place and date of trial. The appellant objects that this administrative practice of the Youth Court violates the non-disclosure provisions of the Young Offenders Act, R.S.C., 1985, c. Y-1 . His objection is well-founded and the appeal must be allowed.
I. Facts
2 The appellant, who is a “young person” within the meaning of s. 2 of the Young Offenders Act (“Act”), was charged with two counts of assault contrary to s. 266 (b) of the Criminal Code, R.S.C., 1985, c. C-46 . On October 16, 1995, he was released on his own recognizance which required that he keep the peace and be of good behaviour for twelve months and that he not initiate any contact or communication with the alleged assault victims. The appellant was subsequently charged with breach of the condition that he keep the peace and be of good behaviour. He was detained in custody on November 22, 1995, and subsequently appeared in the Provincial Court of Newfoundland, Youth Court Division, on November 23, 1995 at which time the matter was put over to January 4, 1996 for the purpose of entering a plea. Eventually, despite several adjournments, the Crown did not present any evidence and the charges were dismissed.
3 The appellant’s complaint relates to the distribution of the Youth Court docket for January 4, 1996 to two school boards in the City of St. John’s. The docket was sent to the school psychologists who treated the information contained in the docket in accordance with the scheme set out in s. 38(1.14) and (1.15). Other persons within the school system were only informed on a need-to-know basis. The point, however, is that the distribution clearly was not limited to the one school board that was responsible for a school attended by each of the young people on the docket. A board does not have a cognizable interest in students or non-students for whom it has no responsibility whatsoever.
4 The routine distribution of the Youth Court docket was undertaken by the Youth Court staff on the recommendation of its “Youth Justice Concerns Committee”. This Committee includes representatives from Legal Aid, the Crown Attorney’s office, the Department of Health -- Mental Health Division, the Royal Newfoundland Constabulary, the RCMP, youth corrections, school boards, child welfare, and, occasionally, the Federation of School Boards and Trustees. The Committee is, as its name suggests, a purely advisory body with no statutory powers or duties. Although a Youth Court judge is a member of the Committee, it is common ground that when sitting on the Committee he is not exercising his powers as a Youth Court judge.
II. Judicial History
A. Supreme Court of Newfoundland, Trial Division (1996), 142 Nfld. & P.E.I.R. 31
5 On January 31, 1996, the appellant applied to the Supreme Court of Newfoundland, Trial Division, for an order of prohibition on the ground that the Youth Court had acted in excess of its jurisdiction by routinely providing school boards with a photocopy of its docket. After reviewing the uses to which the dockets were put, balanced against the students’ right to privacy, the motions judge stated he was satisfied that the confidentiality protection given to Youth Court “records” was inapplicable. He held that a docket was not a “record” as that term is used in s. 40 . He observed that once a matter is called in court, which is open to the public, the purpose of the docket is spent, unlike the record of what transpired in court which “remains a record of the court and is governed by the rules respecting it and is not subject to unrestricted availability” (p. 35). The motions judge construed a docket as simply a daily or weekly agenda and not a record in the context of ss. 41 to 46 of the Act.
6 Even if the docket was a record, the motions judge took the view that the school boards would have been entitled to the records under s. 38(1.13), which permits disclosure of information to any professional or other person engaged in the supervision or care of a young person, including, he ruled, a representative of the school board or school for the purposes listed in that provision: ensuring compliance with a court authorization or order or to ensure the safety of students or staff. He accordingly dismissed the application for prohibition.
B. Newfoundland Court of Appeal (1998), 163 Nfld. & P.E.I.R. 154
7 The appeal was heard by Gushue C.J.N., Marshall and Steele JJ.A., and by reasons dated May 15, 1998 the appeal was unanimously dismissed. Steele J.A., for the Court, accepted that forwarding the docket to the respondent School Boards could be considered to be publication within the meaning of s. 38 , although it is not publication in the ordinary sense and was not for the purpose of making information known in the community. Steele J.A. concluded (at p. 160) that the forwarding of the docket was permitted under s. 38(1.13) of the Act:
Firstly, it can be said with certainty that the purpose of the disclosure, that is, the forwarding of Youth Court docket to the School Boards, was not to make the information known in the community. In fact, the evidence is clear that the two School Boards took extreme precautions to ensure confidentiality. Secondly, the expression "in the course of the administration of justice", is a reference to the role and undertaking of the Youth Court. It is a phrase that demands a broad and liberal interpretation . . . . It was an endeavour carried out in the course of the administration of justice.
8 Steele J.A. considered that the appellant’s argument that a record included any document that might serve to identify a young person charged with an offence was too general. He observed that the prohibition against publication is not absolute “and the Act itself imposes a limitation on the prohibition” (p. 161). He concluded that a docket was not a record, but even if it was he considered that the general prohibition in s. 38(1) did not apply because “the disclosure of the information contained in the docket was a disclosure to a professional or other person engaged in the supervision or care of a young person, including a representative of a School Board or Boards, in circumstances where the disclosure was necessary to ensure the safety of staff, students or other persons” (p. 163). The disclosure, he concluded, was made in the course of the administration of justice and without any intent “of either the Youth Court or the School Boards to make the information known in the community” (p. 163). Disclosure of the docket thus came within s. 38(1.13) of the Act. The appeal was dismissed.
III. Relevant Statutory Provisions
9 Young Offenders Act, R.S.C., 1985, c. Y-1
declaration of principle
3. (1) It is hereby recognized and declared that
. . .
(c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person’s offending behaviour;
. . .
(f) in the application of this Act, the rights and freedoms of young persons include a right to the least possible interference with freedom that is consistent with the protection of society, having regard to the needs of young persons and the interests of their families;
protection of privacy of young persons
[Identity not to be published]
38. (1) Subject to this section, no person shall publish by any means any report
(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or
(b) of any hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence
in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.
[Limitation]
(1.1) Subsection (1) does not apply in respect of the disclosure of information in the course of the administration of justice including, for greater certainty, the disclosure of information for the purposes of the Firearms Act and Part III of the Criminal Code , where it is not the purpose of the disclosure to make the information known in the community.
[Preparation of reports]
(1.11) Subsection (1) does not apply in respect of the disclosure of information by the provincial director or a youth worker where the disclosure is necessary for procuring information that relates to the preparation of any report required by this Act.
[No subsequent disclosure]
(1.12) No person to whom information is disclosed pursuant to subsection (1.11) shall disclose that information to any other person unless the disclosure is necessary for the purpose of preparing the report for which the information was disclosed.
[Schools and others]
(1.13) Subsection (1) does not apply in respect of the disclosure of information to any professional or other person engaged in the supervision or care of a young person, including the representative of any school board or school or any other educational or training institution, by the provincial director, a youth worker, a peace officer or any other person engaged in the provision of services to young persons where the disclosure is necessary
(a) to ensure compliance by the young person with an authorization pursuant to section 35 or an order of any court concerning bail, probation or conditional supervision; or
(b) to ensure the safety of staff, students or other persons, as the case may be.
[No subsequent disclosure]
(1.14) No person to whom information is disclosed pursuant to subsection (1.13) shall disclose that information to any other person unless the disclosure is necessary for a purpose referred to in that subsection.
[Information to be kept separate]
(1.15) Any person to whom information is disclosed pursuant to subsections (1.13) and (1.14) shall
(a) keep the information separate from any other record of the young person to whom the information relates;
(b) subject to subsection (1.14), ensure that no other person has access to the information; and
(c) destroy the information when the information is no longer required for the purpose for which it was disclosed.
maintenance and use of records
Records that may be Kept
[Youth court, review board and other courts]
40. (1) A youth court, review board or any court dealing with matters arising out of proceedings under this Act may keep a record of any case arising under this Act that comes before it.
[Exception]
(2) For greater certainty, this section does not apply in respect of proceedings held in ordinary court pursuant to an order under section 16.
Disclosure of Records
[Records made available]
44.1 (1) Subject to subsections (2) and (2.1), any record that is kept pursuant to section 40 shall, and any record that is kept pursuant to sections 41 to 43 may, on request, be made available for inspection to
(a) the young person to whom the record relates;
(b) counsel acting on behalf of the young person, or any representative of that counsel;
(c) the Attorney General or his agent;
(d) a parent of the young person or any adult assisting the young person pursuant to subsection 11(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 disposition made in respect of the offence;
(e) any judge, court or review board, for any purpose relating to proceedings relating to the young person under this Act or to proceedings in ordinary court in respect of offences committed or alleged to have been committed by the young person, whether as a young person or an adult;
(f) any peace officer,
(i) for the purpose of investigating any offence that the young person is suspected on reasonable grounds of having committed, or in respect of which the young person has been arrested or charged, whether as a young person or an adult,
(ii) for 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 any disposition,
(iii) for the purpose of investigating any offence that another person is suspected on reasonable grounds of having committed against the young person while the young person is, or was, serving a disposition, or
(iv) for any other law enforcement purpose;
(g) any member of a department or agency of a government in Canada, or any agent thereof, that is
(i) engaged in the administration of alternative measures in respect of the young person,
(ii) preparing a report in respect of the young person pursuant to this Act or for the purpose of assisting a court in sentencing the young person after he becomes an adult or is transferred to ordinary court pursuant to section 16,
(iii) engaged in the supervision or care of the young person, whether as a young person or an adult, or in the administration of a disposition or a sentence in respect of the young person, whether as a young person or an adult, or
(iv) considering an application for parole or pardon made by the young person after he becomes an adult;
(h) any person, or person within a class of persons, designated by the Governor in Council, or the Lieutenant Governor in Council of a province, for a purpose and to the extent specified by the Governor in Council or the Lieutenant Governor in Council, as the case may be;
(i) any person, for the purpose of determining whether to grant security clearances required by the Government of Canada or the government of a province or a municipality for purposes of employment or the performance of services;
(i.1) to any person for the purposes of the Firearms Act ;
(j) any employee or agent of the Government of Canada, for statistical purposes pursuant to the Statistics Act; and
(k) any other person who is deemed, or any person within a class of persons that is deemed, by a youth court judge to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.
[Exception]
(2) Where a youth court has withheld the whole or a part of a report from any person pursuant to subsection 13(6) or 14(7), the report or part thereof shall not be made available to that person for inspection under subsection (1).
. . .
[Disclosure of information and copies of records]
(6) Any person to whom a record is required or authorized to be made available for inspection under this section may be given any information contained in the record and may be given a copy of any part of the record.
[Prohibition against disclosure]
46. (1) Except as authorized or required by this Act, no record kept pursuant to sections 40 to 43 may be made available for inspection, and no copy, print or negative thereof or information contained therein may be given, to any person where to do so would serve to identify the young person to whom it relates as a young person dealt with under this Act.
IV. Analysis
10 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 important exceptions where the public interest in confidentiality outweighs the public interest in openness. This balance is dealt with explicitly in the relevant provisions of the Young Offenders Act, which must be interpreted in light of the Declaration of Principle set out in s. 3. These principles were described in R. v. T. (V.), [1992] 1 S.C.R. 749, per L’Heureux-Dubé J., as “attempting to achieve disparate goals” (p. 767). A certain ambivalence created by these disparate goals (or competing objectives) is inherent in the scheme of the Act itself, as L’Heureux-Dubé J. explained at p. 766, quoting Bala and Kirvan in The Young Offenders Act: A Revolution in Canadian Juvenile Justice (1991), at pp. 80-81:
It is apparent that there is a level of societal ambivalence in Canada about the appropriate response to young offenders. On the one hand, there is a feeling that adolescents who violate the criminal law need help to enable them to grow into productive, law-abiding citizens. . . . On the other hand, there is a widespread public concern about the need to control youthful criminality and protect society.
11 The non-disclosure provisions of the Act reflect this ambivalence. Confidentiality assists rehabilitation, but the safety of society must be protected, and those involved in the youth criminal justice system (or with the young offender in other settings) must be given adequate information on a “need-to-know” basis to do their jobs.
12 The youth courts are open to the public, and their proceedings are properly subject to public scrutiny. The confidentiality relates only to the “sliver of information” that identifies the alleged or convicted young offender as a person in trouble with the law. This narrow focus was emphasized in Re Southam Inc. and The Queen (1984), 48 O.R. (2d) 678 (H.C.), aff’d (1986), 53 O.R. (2d) 663 (C.A.), leave to appeal to the Supreme Court of Canada refused, [1986] 1 S.C.R. xiv. In that case, the media challenged the constitutionality of the publication ban and the Crown conceded an infringement of s. 2 (b) of the Canadian Charter of Rights and Freedoms , but argued that the legislation was justified under s. 1 of the Charter . In upholding the constitutionality of the non-disclosure provision, Holland J. (whose reasons were approved by MacKinnon A.C.J.O. on appeal) pointed out, at p. 698, that:
Section 38(1) does not contain an absolute ban. . . . The press is entitled to be present (subject to s. 39(1)(a)) and can publish everything except the identity of a young person involved. Admittedly, there may be other information which the press cannot publish because it may tend to reveal the identity of a young person, but the essence of the provision is that the press is entitled to publish all details except one. Counsel for the Attorney-General of Canada termed the identification of the young person a “sliver of information”, and submitted that this is not an essential detail for the making of responsible judgment by a democratic electorate....
13 This Court’s general approach to the Act was also affirmed in R. v. M. (J.J.), [1993] 2 S.C.R. 421, where Cory J. observed that “the Act does specifically recognize that young offenders have special needs and require careful guidance. Each disposition should strive to recognize and balance the interests of society and young offenders” (p. 429). The non-disclosure provisions were amended in 1986 to “readjust the balance between the rights and interests of young persons and the interests of society by favouring more disclosure, albeit in limited circumstances”, per Prowse J.A. in R. v. M. (E.H.B.) (1996), 106 C.C.C. (3d) 535 (B.C.C.A.), at para. 49. The process of adjustment continues, with Bill C-3 (The Youth Criminal Justice Act) presently under consideration by Parliament.
A. The Need for Confidentiality
14 Stigmatization or premature “labelling” of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. 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. Lamer C.J., in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, pointed out in another context that non-publication is designed to “maximize the chances of rehabilitation for ‘young offenders’” (p. 883). A concern about stigma was also emphasized by Rehnquist J. (as he then was) of the United States Supreme Court in Smith, Judge v. Daily Mail Publishing Co., 443 U.S. 97 (1979), at pp. 107-8:
This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and “bury them in the graveyard of the forgotten past”. . . . The prohibition of publication of a juvenile’s name is designed to protect the young person from the stigma of his misconduct and is rooted in the principle that a court concerned with juvenile affairs serves as a rehabilitative and protective agency of the State. . . . Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youths’ prospects for adjustment in society and acceptance by the public. [Citations omitted.]
15 In the same vein, Professor N. Bala, Young Offenders Law (1997), points out at p. 215:
Because of the history of protection of privacy, there is little Canadian experience with publication of identifying information about youths. However, available research from the United States, where some states have a more open juvenile court process and allow publication of the identity of adolescents before the courts, indicates that rehabilitation of young offenders can be significantly hindered if their identities are publicized. Publication increases a youth’s self-perception as an offender, disrupts the family’s abilities to provide support, and negatively affects interaction with peers, teachers, and the surrounding community. [Emphasis added; footnotes omitted.]
16 I should add that the importance of confidentiality in dealing with youthful offenders is recognized internationally, as set out in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) adopted by General Assembly Resolution A/RES/40/33 of November 29, 1985, supported by Canada, which includes the following provisions in Rule 8:
8.1 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
17 The problem of premature “labelling” was well understood in the Ontario case of Southam, supra, where the court went on to say, at p. 697, that:
The aim of s. 38(1) and s. 39(1)(a) is the protection of young people from harmful effects which publicity may have on them. A corollary to this is the protection of society, since, on the evidence of the experts, most young offenders are one-time offenders only and, the less harm brought upon them from their experience with the criminal justice system, the less likely they are to commit further criminal acts.
B. Protecting the Public
18 The scheme of the Act does not attempt to achieve rehabilitation of the offender at the expense of public safety. This Court has had occasion recently to express particular concern about safety in the schools in R. v. M. (M.R.), [1998] 3 S.C.R. 393, per Cory J., at para. 3:
. . . it is essential that school authorities be able to react swiftly and effectively when faced with a situation that could unreasonably disrupt the school environment or jeopardize the safety of the students. Schools today are faced with extremely difficult problems which were unimaginable a generation ago. Dangerous weapons are appearing in schools with increasing frequency. There is as well the all too frequent presence at schools of illicit drugs. These weapons and drugs create problems that are grave and urgent.
The Act creates two distinct but mutually reinforcing regimes to control information about a young offender.
19 The first set of provisions commences at s. 38(1) with a general prohibition that “no person shall publish by any means any report” (emphasis added) identifying a young offender with an offence or proceeding under the Act. The provision is headed “Protection of Privacy of Young Persons”. It then establishes a series of exceptions to the general rule, which have generally been given a restrictive interpretation: see Ontario (Solicitor General) v. Ontario (Information and Privacy Commissioner), [1996] O.J. No. 2218 (QL) (Div. Ct.); R. v. N. (K.) (1989), 51 C.C.C. (3d) 404 (Man. Prov. Ct.); R. v. A.M.M., [1994] O.J. No. 1178 (QL) (Prov. Div.); Scarlett Heights Collegiate Institute v. K.M., [1995] O.J. No. 3750 (QL) (Prov. Div.), at para. 6.
20 The second regime applies to the maintenance and use of court records found in ss. 40 to 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.
21 Sections 40 to 44 are the more narrowly targeted regime. In the French version of the Act the word “record” is said to be equivalent to “dossier”, which suggests a greater level of formality and permanence as part of the court record than does the word “report”, which may cover informal communications that are more casual or transitory, or which may be directed to a purpose collateral to the court proceedings, such as information provided by a youth worker to a probation officer.
22 Section 38 is the broader prohibition, and is directed against any disclosure (“report”) linking the alleged offence or the hearing or other court proceeding with the identity of the alleged offender, the victim, or any young person who appears as a witness. The source of the information is not restricted to information derived from the court proceedings. These provisions set out the scope of the ban. There is a series of exceptions, which I will come to momentarily.
C. The Distinction Between “A Report” and “A Record”
23 Much argument was directed here and in the courts below to the precise scope of the words “report” in s. 38 and “record” in s. 40 . The idea seemed to be that if the document could be characterized as something other than a “record” or “report”, its contents could be disseminated free of statutory restrictions. I do not agree. While neither term is defined in the Act, etymological niceties ought not to be allowed to overwhelm the clear purpose expressed by Parliament to control publication of “the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or . . . any information serving to identify such young person or child” (s. 38(1)).
24 It is scarcely plausible that Parliament intended to control publication of such information by way of a “report” but was quite prepared to have the same information disclosed to the public in an allegedly different vehicle called a communiqué, notification write-up, divulgation or, indeed, docket. What is important is not what the communication is called but the substance of what is communicated. The concern is with the message, not with the label applied to the medium of communication. The phrase “publish by any means any report” in s. 38(1) can therefore refer to something as formal as a government report or an article in a newspaper or as informal as court observers spreading gossip and innuendo: Re Peel Board of Education and B (1987), 59 O.R. (2d) 654 (H.C.), at p. 659.
25 The same purposive approach to definition should be applied to “record” in ss. 40 to 46 . A preference for substance over formalism is consistent with the background paper published by the Ministry of the Solicitor General of Canada in the wake of the ss. 40 to 46 amendments in 1986: Record-keeping under the Young Offenders Act: A Guide (1986). After providing some general insight into the changes made to the disclosure provisions, the department’s view is summarized at p. 9, as follows:
In light of these governing considerations [the principles set out in s. 3 of the Act], the new provisions cover one type of document only. The only documents that are subject to any special consideration are those connecting the young person with proceedings under the Act; those identifying only the young person, or, for example, only the offence are not subject to any such consideration. The introduction of this distinction permits some flexibility in records management: records can be maintained and used for many reasons. The key consideration is the avoidance of adverse and unnecessary prejudice arising from a criminal allegation or conviction. [Underlining added; italics in original.]
And at pp. 12-13 of the same publication, the following remarks regarding the absence of a definition of the term “record” are apposite:
No definition is necessary in view of th