Privacy Rights, Publication Bans, and Youth Records

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 351-380

351

I. Introduction ............................................. 352

II. The United Nations Convention on the Rights of the Child and

theBeijingRules .......................................... 353

III. Declaration of Principle: Section 3—PrivacyRights .............. 354

IV. Part VI of the YCJA: Publication Bans ......................... 354

V. Youth Records ........................................... 358

Appendix 12.1: YCJA Records—No Finding of Guilt ............. 378

Appendix 12.2: YCJA Records—Finding of Guilt ................ 379

Privacy Rights,

Publication

Bans, and

Youth Records

12

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352 Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

The Youth Criminal Justice Act1 contains a variety of sections designed to protect the

identity and privacy rights of young people who have been involved in the criminal

justice system. Canada is also a signatory to the United Nations Convention on the

Rights of the Child2 and the United Nations Standard Minimum Rules for the Adminis-

tration of Juvenile Justice (“The Beijing Rules”),3 both of which contain specific provi-

sions designed to similarly ensure the identities of children charged or prosecuted for

criminal oences are protected.

The importance of these provisions cannot be overstated. As a general rule, the

identity of a young person dealt with under the YCJA may not be published. It is an

oence, punishable by indictment under section138 of the YCJA, to contravene these

provisions. The maximum penalty is two years’ incarceration.

In FN(Re), decided under the nearly identical sections of the Young Oenders Act,4

BinnieJ, for a unanimous Supreme Court of Canada, explained the rationale behind them:

Stigmatization or premature “labelling” of a young oender 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.5

In AB v Brag Communications Inc, a civil case addressing a teen girl who was

cyberbullied online, AbellaJ noted that “recognition of the inherent vulnerability

of children” informed the need for preserving their right to privacy in the court pro-

cess.6 That right to privacy, while informed by a variety of statutes, including the

YCJA, has also taken on constitutional significance under the Charter.

In addition to the sections addressing publication bans regarding young persons

dealt with under the Act, the YCJA contains a comprehensive set of provisions that

address youth records kept by the courts, government agencies or departments, and

police forces. Part6 of the YCJA sets explicit restrictions on who may access youth

records and for what purposes, time periods during which access may be made, and

with whom disclosure may be subsequently shared. It is also an oence under sec-

tion138 of the YCJA to contravene the records provisions of the YCJA. The maxi-

mum penalty is two years’ incarceration.

1 SC 2002, c 1 [YCJA].

2 20 November 1989, 1577 UNTS 3, Can TS 1992 No 3 (entered into force 2 September 1990),

online (pdf ): <https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/

crc.pdf> [UNCRC].

3 GA Res 40/33, UNGAOR, 40th Sess, UN Doc A/RES/40/33 (1985) 206, online (pdf):

<https://www.ohchr.org/sites/default/files/beijingrules.pdf>.

4 RSC 1985, c Y-1 [repealed] [YOA].

5 FN (Re), 2000 SCC 35 at para 14.

6 2012 SCC 46 at para 17.

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