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The Ontario Superior Court struck down a provision of the Youth Criminal Justice Act (YCJA) that prohibited the disclosure of information drawn from court cases involving young people.Sammy Kogan/The Globe and Mail
An Ontario court has struck down a key legal provision limiting journalists’ ability to obtain information and report on youth criminal matters, declaring the restrictions to be unconstitutional.
In a ruling issued Tuesday, the Ontario Superior Court struck down a provision of the Youth Criminal Justice Act (YCJA) that prohibited the disclosure of information drawn from court cases involving young people – even when the details have already been shared in open court and do not identify minors.
A consortium of media organizations that included The Globe and Mail, the CBC and the Toronto Star, filed a legal challenge following a high-profile youth court proceeding against eight teenage girls, who were charged with second-degree murder after a man was swarmed and stabbed to death in downtown Toronto in December, 2022.
The legal challenge alleged that media organizations struggled to access basic information about the proceedings, including court appearances, owing to the restrictions imposed by the YCJA.
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The application argued that these limits violated Canadians’ Charter right to free expression and undermined the open court principle, a foundational element of the country’s legal system.
“The media have often been referred to as the ‘eyes and ears’ of the public,” Tuesday’s decision said.
Youth criminal matters have long been subjected to rigorous privacy measures. By law, the identity of youth accused or convicted of crimes cannot disclosed – a provision that was not challenged by the media consortium’s complaint. Youth court records are also sealed, subject to some exceptions.
The legal complaint also sought to challenge a portion of the YCJA that requires journalists to bring applications before a judge to access to youth records. Under the legislation, journalists must demonstrate to the court that obtaining such materials is in the public interest. This, the complaint argued, resulted in unreasonable delays and in some cases, inaccurate reporting.
In his ruling, Justice Paul B. Schabas said while the provision violated free expression rights, the Charter also allows for reasonable limits on Canadians’ freedoms.
The decision notes that young people are recognized under Canadian and international law as “inherently vulnerable as a class” with an enhanced right to privacy.
However, the decision said it should be easy for most journalists to be granted access to youth court records, given the open court principle.
“Formalities should, where appropriate, be relaxed” when dealing with such media requests, the decision said.
The secrecy surrounding youth court proceedings does not always benefit young people – and may increase their risk of being subjected to improper practices, the decision adds.
The media application relied on evidence from Jennifer Pagliaro, a Toronto Star reporter with extensive experience covering the court system and youth justice issues in particular.
In an affidavit, Ms. Pagliaro described the barriers journalists faced in covering the swarming trial, noting, for example, challenges in accessing court exhibits. Tuesday’s decision described the delays faced by media in obtaining records – caused by Crown lawyers and the clerk’s office – as “concerning” and “unacceptable.”
Ms. Pagliaro’s reporting on the proceedings uncovered that the accused girls were subject to routine strip searches while in custody, which was later declared unconstitutional by an Ontario judge.
All eight of the accused girls pleaded guilty to lesser offences, including manslaughter or assault, in the fatal attack on 59-year-old Kenneth Lee. Only one proceeded to trial on the second-degree murder charge but was found guilty of manslaughter.
In a statement, Ryder Gilliland, a partner at DMG Advocates LLP who represented the media consortium, said the Tuesday decision “makes clear that the government policies that have impeded journalists’ ability to report on youth proceedings must be improved.”
“Going forward members of the media should not have to bring complicated applications to obtain access to youth court records. If the government and youth courts follow this guidance, the ability of journalists to report on youth court proceedings will be much improved.”
The federal Justice Department did not provide a comment on Tuesday.
In striking down the section of the YCJA that prevents the disclosure and dissemination of information in youth court records, the decision said the provision had the harmful effect of suppressing innocuous case details such as court dates.
The provision could also prevent journalists from investigating information found in a record, or discussing the information with an editor.
“This poses yet another barrier to timely, fair and accurate reporting on youth proceedings, which is inconsistent with the public interest in having open courts,” the decision says.