F.N., Re, (2000) 255 N.R. 250 (SCC)

• Judge: L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache, Binnie and Arbour, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 03, 1999
• Jurisdiction: Canada (Federal)
• Citations: (2000), 255 N.R. 250 (SCC);2000 SCC 35;188 DLR (4th) 1;JE 2000-1465;146 CCC (3d) 1;[2000] SCJ No 34 (QL);[2000] 1 SCR 880;255 NR 250;46 WCB (2d) 473;35 CR (5th) 1;191 Nfld & PEIR 181

F.N., Re (2000), 255 N.R. 250 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.R. TBEd. JL.021

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)

(26805; 2000 SCC 35)

Indexed As: F.N., Re

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache, Binnie and Arbour, JJ.

July 20, 2000.

Summary:

A youth was charged with offences con­trary to the Criminal Code and appeared in the Newfoundland Provincial Court, Youth Court Division. The youth's name and the alleged offences appeared on the Youth Court docket. The Youth Court had a prac­tice of sending a copy of the court docket to two St. John's school boards. The youth sought an order of prohibition to prevent the Youth Court from supplying copies of its weekly dockets to the school boards. He argued that the Youth Court's practice vio­lated the nondisclosure provisions of the Young Offenders Act.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 142 Nfld. & P.E.I.R. 31; 445 A.P.R. 31, denied the application. The youth appealed.

The Newfoundland Court of Appeal, in a decision reported at 163 Nfld. & P.E.I.R. 154; 503 A.P.R. 154, dismissed the appeal. The youth appealed.

The Supreme Court of Canada allowed the appeal and issued an order of prohibition against the continuation of the Youth Court's practice of distributing the docket to both St. John's school boards.

Criminal Law - Topic 8717

Young offenders - Procedure - Trial "with­out publicity" - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - The Newfoundland Provincial Court, Youth Court Division, had a practice of sending copies of the Youth Court docket (which included the names of persons charged) to two St. John's school boards - The Supreme Court of Canada held that the docket could not be distributed to school boards under the "administration of justice" exception in s. 38(1.1) - See paragraphs 44 to 47.

Criminal Law - Topic 8717

Young offenders - Procedure - Trial "with­out publicity" - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - The Newfoundland Provincial Court, Youth Court Division, had a practice of sending copies of the Youth Court docket (which included the names of persons charged) to two St. John's school boards - The Supreme Court of Canada held that the docket could not be distributed to school boards under the "school board" exception in s. 38(1.13) - The court stated, inter alia, that the scheme of s. 38(1.13) was that the information should be provided not by the Youth Court but by the provincial director, a youth court worker or peace officer, and should be directed only to the school board with which the young person was as­sociated - See paragraphs 48 to 57.

Criminal Law - Topic 8717

Young offenders - Procedure - Trial "with­out publicity" - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - The Supreme Court of Canada stated that the word "publish" required a purposive inter­pretation and that in the context of the Act "publish" included disclosure of the con­trolled information to the community or any part thereof not authorized to receive it - See paragraph 42.

Criminal Law - Topic 8717

Young offenders - Procedure - Trial "with­out publicity" - [See all Criminal Law - Topic 8863 ].

Criminal Law - Topic 8863

Young offenders - Court records - Record - What constitutes - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - Sections 40 to 46 of the Act applied to the maintenance and use of court records and set out the circumstances in which they might be disclosed - The Supreme Court of Canada rejected the idea that if a document could be characterized as something other than a "record" or "report" its contents could be disseminated free of statutory restrictions - What was important was not what a communication was called but the substance of what was communicated - The phrase "publish by any means any report" in s. 38(1) could therefore refer to something as formal as a government report or as informal as court observers spreading gossip and innuendo - The same purposive approach to definition was to be applied to "record" in ss. 40 to 46 - See paragraphs 23 to 25.

Criminal Law - Topic 8863

Young offenders - Court records - Record - What constitutes - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - Sections 40 to 46 of the Act applied to the maintenance and use of court records and set out the circumstances in which they might be disclosed - The Supreme Court of Canada, in considering the meaning of "report" in s. 38(1) and "record" in ss. 40 to 46, stated that "[t]he interpretive exer­cise is therefore not directed at some for­mal classification of documents, but at the nature of the information. Specifically, does the document create a link between the identity of a young person and an (alleged) offence or hearing under the Act? The further question, whether the docu­ment is a 'record' or a 'report', seems to depend largely on its source" - See para­graph 27.

Criminal Law - Topic 8863

Young offenders - Court records - Record - What constitutes - Section 38(1) of the Young Offenders Act provided that "no person shall publish by any means any report" identifying a young offender with an offence or proceeding under the Act - Sections 40 to 46 of the Act applied to the maintenance and use of court records and set out the circumstances in which they might be disclosed - The Supreme Court of Canada stated that "[o]n a reading of ss. 40-46 as a whole, it appears that a record within the meaning of those provisions includes two characteristics: firstly, it will 'serve to identify the young person to whom it relates as a young person dealt with under [the] Act' (s. 46). Secondly, it records information kept by a youth court (unless the matter is transferred to adult court) or review board (s. 40) or kept by the police (s. 41) or by a government agency for purposes related to the juvenile justice system (s. 43) or kept by another organization or person involved in 'alterna­tive measures' (s. 43) or other disposition under the Act. Information in the hands of persons not mentioned in ss. 40-46 that discloses the confidential link between the alleged offender to the offence or a hearing is better considered a 'report' to be dealt with under s. 38" - See paragraph 27.

Criminal Law - Topic 8866

Young offenders - Court records - Dis­closure of - [See first Criminal Law - Topic 8863 ].

Criminal Law - Topic 8866

Young offenders - Court records - Dis­closure of - The Newfoundland Provincial Court, Youth Court Division, had a prac­tice of sending copies of the Youth Court docket (which included the names of per­sons charged) to two St. John's school boards - The Supreme Court of Canada held that, accepting that the docket was a "record" within the meaning of ss. 40 to 46 of the Young Offenders Act, the statutory requirements for disclosure under s. 44.1 were not met - The requirements in s. 44.1(1)(k) were not satisfied where: (1) disclosure was not authorized by a judge; (2) distribution was not limited to the school board responsible for the school of the young offender; and (3) the infor­mation was distributed for school purposes and not for purposes related to the ad­ministration of justice - The exception in s. 44.1(1)(g) ("agency of government ... engaged in the supervision or care of the young person") also did not apply - The type of government agency contemplated by s. 44.1(1)(g) was an agency involved in the youth justice system and responsible in that context for the supervision or care of the young person who was in trouble with the law - See paragraphs 31 to 39.

Words and Phrases

Publish - The Supreme Court of Canada considered the meaning of the word "pub­lish" within the context of s. 38(1) of the Young Offenders Act, R.S.C. 1985, c. Y-1 - See paragraph 42.

Words and Phrases

Record - The Supreme Court of Canada considered the meaning of the word "record" within the context of ss. 40 to 46 of the Young Offenders Act, R.S.C. 1985, c. Y-1 - See paragraphs 23 to 28.

Words and Phrases

Report - The Supreme Court of Canada considered the meaning of the word "report" within the context of s. 38(1) of the Young Offenders Act, R.S.C. 1985, c. Y-1 - See paragraphs 23 to 28.

Cases Noticed:

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81: 71 C.C.C.(3d) 32, refd to. [para. 10].

Southam Inc. v. R. (1984), 48 O.R.(2d) 678 (H.C.), affd. (1986), 12 O.A.C. 394; 53 O.R.(2d) 663 (C.A.), leave to appeal denied [1986] 1 S.C.R. xiv; 68 N.R. 398; 16 O.A.C. 80, refd to. [para. 12].

R. v. J.J.M., [1993] 2 S.C.R. 421; 152 N.R. 274; 85 Man.R.(2d) 161; 41 W.A.C. 161; 81 C.C.C.(3d) 487, refd to. [para. 13].

R. v. McKay (E.H.) (1996), 76 B.C.A.C. 130; 125 W.A.C. 130; 106 C.C.C.(3d) 535 (C.A.), refd to. [para. 13].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1; 34 C.R.(4th) 269, refd to. [para. 14].

Smith, Judge v. Daily Mail Publishing Co. (1979), 443 U.S. 97 (S.C.), refd to. [para. 14].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 159 N.S.R.(2d) 321; 468 A.P.R. 321, refd to. [para. 18].

Ontario (Solicitor General) v. Ontario (Information and Privacy Commissioner), [1996] O.J. No. 2218 (Div. Ct.), refd to. [para. 19].

R. v. K.N. (1989), 51 C.C.C.(3d) 404 (Man. Prov. Ct.), refd to. [para. 19].

R. v. A.M.M., [1994] O.J. No. 1178 (C.J. Prov. Div.), refd to. [para. 19].

Scarlett Heights Collegiate Institute v. K.M., [1995] O.J. No. 3750 (C.J. Prov. Div.), refd to. [para. 19].

Peel Board of Education and B., Re (1987), 59 O.R.(2d) 654 (H.C.), refd to. [para. 25].

Smith and Clerk of Youth Court, Re (1986), 31 C.C.C.(3d) 27 (Ont. U.F.C.), refd to. [para. 34].

R. v. H.E.A., [1984] O.J. No. 707 (Prov. Ct. Fam. Div.), refd to. [para. 34].

R. v. T.I. (1985), 13 W.C.B. 494 (N.S. Youth Ct.), refd to. [para. 34].

Person Unknown v. M.S. (1986), 43 M.V.R. 306 (Ont. Prov. Ct. Fam. Div.), refd to. [para. 34].

F.G. and J.M. v. Board of Education of Scarborough (1994), 68 O.A.C. 308 (Div. Ct.), refd to. [para. 55].

G.H. v. Shamrock School Division No. 38 (Sask.) Board of Education, [1987] 3 W.W.R. 270 (Sask. Q.B.), refd to. [para. 55].

R.G., Re, [1999] B.C.J. No. 1106 (Prov. Ct.), refd to. [para. 55].

Statutes Noticed:

Young Offenders Act, R.S.C. 1985, c. Y-1, sect. 38(1), sect. 38(1.1), sect. 38(1.11), sect. 38(1.12), sect. 38(1.13), sect. 38(1.14), sect. 38(1.15), sect. 40(1), sect. 40(2), sect. 44.1(1), sect. 44.1(2), sect. 44.1(6), sect. 46(1) [para. 9].

Authors and Works Noticed:

Bala, Nicholas, Young Offenders Law (1997), p. 215 [para. 15].

Bala, Nicholas, and Kirvan, Mary-Anne, The Statute: Its Principles and Provisions and Their Interpretation by the Courts, in Leschied, Alan W., Jaffe, Peter G., and Willis, Wayne, The Young Offenders Act; A Revolution in Canadian Juvenile Justice (1991), pp. 80 to 81 [para. 10].

Canada, Solicitor General, Record Keeping Under the Young Offenders Act: A Guide (1986), pp. 9, 12 to 13 [para. 25].

Leschied, Alan W., Jaffe, Peter G., and Willis, Wayne, The Young Offenders Act; A Revolution in Canadian Juvenile Justice (1991), pp. 80 to 81 [para. 10].

Platt, Priscilla, Young Offenders Law in Canada (2nd Ed. 1995), pp. 529 to 531 [para. 28].

Counsel:

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.

Solicitors of Record:

Joan Dawson, St. John's, Newfoundland, for the appellant;

The Department of Justice, St. John's, Newfoundland, for the respondent, Her Majesty the Queen;

Stewart McKelvey Stirling Scales, St. John's, Newfoundland, for the respon­dents, The Roman Catholic School Board for St. John's and The Avalon Consoli­dated School Board;

Canadian Foundation for Children, Youth and the Law, Toronto, Ontario, for the intervener.

This appeal was heard on November 3, 1999, before L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court of Canada was delivered in both official languages by Binnie, J., on July 20, 2000.