OFF THE RECORD: A CRITICAL ANALYSIS OF YOUTH RECORD DISCLOSURE PRACTICES.
I INTRODUCTION 31 II THE RELATIONSHIP BETWEEN POLICE RECORD CHECKS, CRIMINAL RECORD CHECKS, AND THE YCJA 32 A. Criminal and Police Record Checks 32 B. Youth Records under the YCJA 34 III THE FRAMEWORK OF THE YCJA 34 A. Overarching Purpose of the YCJA 33 B. Statutory Scheme 37 IV CONTEMPORARY CRIMINAL RECORD DISCLOSURE PRACTICES 39 A. Consent may be Deficient 42 B. Current Practices Facilitate Contravention of the YCJA's Privacy Provisions 46 C. Current Practices Are Contrary to the Spirit of the YCJA 51 V SUGGESTIONS FOR REFORM 55 VI CONCLUSION 62 A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was. Joseph Hall
I INTRODUCTION (1)
Obtaining summer employment; taking a day-trip to Buffalo, New York; securing an apartment; majoring in theatre studies. (2) What do all of these undertakings have in common? Each of these goals may be more difficult for an individual to achieve if he or she has been found guilty of a criminal offence under the Youth Criminal Justice Act ("YCJA"). (3)
In an age of rapid technological advancement, third party requests for police record checks have proliferated. Today, it is not uncommon for employers, landlords, volunteer organizations, and even post-secondary institutions to request that an individual obtain a police record check as part of their application process. In the eyes of a decision-maker, a young person may become a less suitable candidate by virtue of his or her youth criminal history. As a result of contemporary disclosure practices, an individual may face lasting barriers to opportunities long after his or her involvement with the youth criminal justice system has ended. Is this practice justifiable under Canadian law?
In Ontario, the permissibility of disclosing police records to third parties is a subject of heated debate. On the one hand, proponents of police record checks contend that third party access to these records serves valuable social function: shielding the recipient organizations from liability, promoting the safety of the public, and protecting vulnerable persons. On the other hand, opponents argue that the request and utilization of these records is discriminatory; moreover, it contributes to recidivism and undermines the process of rehabilitation. (4) In an effort to address these concerns, the Ontario provincial government recently enacted the Police Record Checks Reform Act, 2015 ("PRCRA") to standardize and restrict the information that may be disclosed on police record checks. (5) Nonetheless, debates surrounding these issues continue. (6)
Despite the widespread attention surrounding police record disclosure, little research has been done to examine the unique issues that disclosure presents in the youth criminal justice context. This paper critically evaluates the legitimacy of contemporary disclosure practices and the impact of these practices on two critical areas of a young person's life: housing and employment. It proceeds in five parts. Part I clarifies the relationship between police record checks and the YCJA. Part II outlines the purpose and statutory scheme of the YCJA. Part III considers the legitimacy and effects of disclosing youth record information to employers and landlords. Part IV outlines suggestions for reform. In broad strokes, this paper argues that police services should not facilitate third party youth record disclosure for several reasons: first, a young person's consent may not be construed as meaningful; second, the third-party uses to which these records will be put often contravene the privacy provisions of the YCJA; and third, current disclosure practices undermine the YCJA's broader aims of privacy protection and rehabilitation of young persons. To conclude, this paper explores how legislative reform can help to promote disclosure practices that complement, rather than undermine, the YCJA's fundamental values of privacy protection, rehabilitation, and reintegration.
II THE RELATIONSHIP BETWEEN POLICE RECORD CHECKS, CRIMINAL RECORD CHECKS, AND THE YCJA
Before analyzing the legitimacy of current criminal record disclosure practices under the YCJA, it is important to clarify the relationship between police record checks, criminal record checks, and the YCJA.
A. CRIMINAL AND POLICE RECORD CHECKS
A criminal record check is a type of police record check. The legislative scheme governing police record checks is complex. Policies relating to the retention and disclosure of these records are dictated by several overlapping pieces of provincial and federal legislation. To complicate matters, the terminology used to describe the different kinds of police record checks and the information these checks disclose often varies by jurisdiction. In recent years, the inconsistent policies governing police record check disclosure have attracted criticism. (7) In response, some provincial governments, including Ontario's, have developed provincial legislation to provide more clarity and consistency to disclosure policies. (8)
Generally speaking, local police stations conduct three types of police record checks. (9) Ontario's PRCRA, which has yet to come into force, (10) refers to these levels as follows: (1) criminal record check; (2) criminal record and judicial matters check; and (3) vulnerable sector check. (11) The informational content of each type of police record check is set out in the PRCRA's Schedule, as adopted by section 9. (12) The scope of information disclosed varies depending on the type of police record check conducted.
In Ontario, third parties, such as employers and landlords, generally request that applicants provide the third party with a criminal record check (level one of the PRCRA, above). Pursuant to section 9, this check includes findings of guilt under the YCJA within the prescribed access period, and adult criminal convictions for which a pardon has not been granted. (13) A criminal record and judicial matters check (level two) discloses a wider range of information, including certain court orders against the individual, conditional and absolute discharges (within specified time periods), and outstanding warrants. (14) Finally, vulnerable sector checks (level three) disclose the widest range of information, including certain charges where the individual was found not criminally responsible on account of mental disorder, (15) and additional non-conviction information that meets the requirements for "exceptional disclosure". (16)
Critically, according to section 9 and the accompanying Schedule of the PRCRA, all three levels of police record checks include findings of guilt under the YCJA within their prescribed access periods. (17) The inclusion of this information within a police record check activates the YCJA's privacy protection provisions.
B. YOUTH RECORDS UNDER THE YCJA
Records that fall within the purview of the YCJA are often referred to collectively as "youth records". Section 2 of the YCJA defines the term "record" very broadly. It includes "any thing containing information... that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act." (18) There are three main types of youth records that are contemplated by the YCJA: (1) youth court records; (2) government records; and (3) police records. (19) Under the YCJA, a "police record" is defined by section 115(1) as "[a] record relating to any offence alleged to have been committed by a young person, including... fingerprints or photographs". (20) For simplicity, this third subtype of youth record shall be referred to in the subsequent discussion as "youth records". This paper restricts its analysis to the practice of disclosing information contained in a youth record during a criminal record check.
III THE FRAMEWORK OF THE YCJA
Criminal record checks generally include particular youth records and adult police records. However, unlike adult police record disclosure, which is governed on a federal level by the Criminal Records Act and the Privacy Act, the disclosure of youth records is dictated by the YCJA's independent and distinct statutory scheme. (21) As a result, disclosure practices that are sanctioned by adult police record legislation may nonetheless be prohibited under the YCJA. It is therefore critical that youth records are not treated as synonymous with their adult counterparts. Criminal record check practices must disclose information related to youth offences in compliance with the YCJA's broader purpose and specific privacy protection scheme, as set out below.
A. OVERARCHING PURPOSE OF THE YCJA
One of the central aims of the YCJA is the protection of the public from crime through the rehabilitation of young persons. (22) The privacy rights of young persons are understood in Canadian law as being essential to their rehabilitation. As stated by Binnie J in FN (Re):
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. (23)
This concern to avoid labelling and stigmatization of young persons has been deemed "essential to an understanding of why the protection of privacy is such an important value in the [YCJA]." (24) This does not mean, however, that the YCJA's privacy rights are simply an instrumental tool to prevent stigmatization. A young person's privacy rights have also taken on constitutional significance in the jurisprudence, as they implicate a young person's right to liberty and security under the Canadian Charter of Rights and Freedoms. (25) In addition, the YCJA's privacy protections are understood as a means of recognizing a young person's presumption of diminished moral culpability. (26) It follows from this presumption that when young people make poor decisions that implicate the youth criminal justice system, records of this conduct should not follow a young person into adulthood. (27)
The YCJA's stringent privacy protection scheme also accords with the YCJA's Declaration of Principle. Section 3(l)(b)(iii) provides that "the criminal justice system for young persons must... emphasize... enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected". (28) The Declaration of Principle applies to the interpretation of the entire YCJA. (29)
In addition, the interpretation of the YCJA is guided by two treaties to which Canada is a signatory: the United Nations Convention on the Rights of the Child ("UNCRC") and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (more commonly referred to as the "Beijing Rules"). (30) Both of these treaties contain specific provisions to protect the identity of young people who are charged or prosecuted for a criminal offence. (31) While these international treaties do not directly give rise to domestic rights and remedies, they play a significant role in informing the judiciary's interpretation of the YCJA and its privacy protection scheme. (32) For instance, the UNCRC, which is explicitly referenced in the YCJA's preamble, (33) assists in explaining the YCJA's object and purpose. (34) Accordingly, the Supreme Court of Canada has previously framed its discussion of the YCJA's privacy protections by reference to the UNCRC. (35) Similarly, although the Beijing Rules are not explicitly incorporated into the YCJA's preamble, they have also been referenced to support a contextual interpretation of the YCJA's privacy provisions. (36) These international instruments, which contain articles promoting the privacy of young persons, thus serve to bolster the privacy values enshrined in the YCJA.
Taken together, these three authorities--international instruments, the jurisprudence, and the YCJA itself--affirm the YCJA's overarching commitment to the rehabilitation and privacy protection of young persons. These values animate and guide the implementation of the YCJA's privacy provisions.
B. STATUTORY SCHEME
At the outset, it is critical to note that the YCJA provides the sole route for lawful access to youth records. Section 118(1) of the YCJA states:
Except as authorized or required by this act, no person shall be given access to a [youth record] and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. (37)
In SL v NB, Doherty JA confirmed that the YCJA provides the exclusive means of access to youth records, noting that "[t]he language of s. 118 and the comprehensiveness of the scheme itself demonstrate that Parliament intended that access to the records could be gained only through the [YCJA]." (38)
This lends a great deal of importance to section 119(1), which places strict limits on youth record access by including an exhaustive list of persons who may be permitted to gain access to a youth record during prescribed access periods. This list includes "the young person to whom the record relates", the young person's counsel and parents, and the Attorney General, as well as other government and legal actors who are dealing with a young person's case. (39) Critically, the only persons who may be granted access to youth records for employment purposes are those "carrying out a criminal record check required by the Government of Canada or the government of a province or a municipality". (40) In other words, the only employers who may be authorized to gain access to a youth record are those organizations that are required by law to conduct a police record check. Section 119(1) does not permit landlords to access youth records for the purpose of carrying out a police record check.
In addition to this set list of aforementioned persons, the youth court has discretion to allow access to youth records to a person with a "valid interest" in the record when such access is "desirable in the interest of the proper administration of justice." (41) This provision has generally been used to permit access to records for the purposes of subsequent litigation. (42) It is difficult to see how granting youth record access to landlords and employers for screening purposes promotes the "proper administration of justice" under section 119(l)(s)(ii). Therefore, with the exception of employers required by law to conduct a criminal record check, employers and landlords may not gain authorization to access youth records for the purposes of screening for suitable candidates in an application process.
As a side note, it is important to mention that after the termination of a youth sentence, a young person is deemed not to have been found guilty or convicted of the offence. (43) Further, with certain exceptions, a finding of guilt under the YCJA does not qualify as a previous conviction. (44) As stated by Daunt J,
[A] basic effect of the [YCJA is] that all sentences are a form of conditional discharge. There are no "convictions" per se for youth, with some exceptions... The [YCJA] is meant to give youths the opportunity to make a fresh start. (45)
In keeping with this idea, access to most youth records is further limited by section 119(2). This provision stipulates specific periods of time for which the aforementioned persons can access particular youth records. Access periods vary depending on the type of record in question; they can range from 2 months to 5 years, and are subject to further extensions in certain circumstances. (46) If a youth record falls outside of its access period, it is generally inaccessible unless a person brings a successful application for access under a stringent test set out in section 123 of the YCJA. Notwithstanding these access periods a young person and his or her counsel may continue to access the young person's record at any time. (47)
Another critical provision protecting a young person's privacy rights is the prohibition against subsequent disclosure, which reads:
No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. (48)
Therefore, if a person contemplated by section 119(1) gains access to a youth record, subsequent disclosure of that record to third parties who are not identified in section 119(1) is strictly prohibited.
Finally, section 138 of the YCJA makes it a serious offence to contravene the privacy provisions of the YCJA. This includes section 118(1) ("no access to records unless authorized"), and section 129 ("no subsequent disclosure"). The maximum penalty for doing so is two years' incarceration. (49)
Taken together, these provisions create the YCJA's distinct privacy scheme. This framework represents a concrete realization of two commitments that lie at the heart of the YCJA: protecting young people's privacy interests and promoting their rehabilitation. With an appreciation of the YCJA's overarching purpose and its stringent privacy protection framework, one has the necessary context to critically analyze contemporary youth record disclosure practices.
IV CONTEMPORARY CRIMINAL RECORD DISCLOSURE PRACTICES
Considering the YCJA's strict limitations on youth record access and disclosure, how are unauthorized third parties such as landlords and employers able to gain access to an individual's youth criminal history? The answer is through the subsequent disclosure of criminal record checks.
Although the section 119(1) of the YCJA sets out a limited number of persons who may access youth records, the practical reality is that individuals who are not permitted access under this provision nonetheless access this information on a regular basis. (50) This is because rather than directly requesting an applicant's criminal record check from police services, interested third parties request that the applicant discloses his or her record. In other words, third parties will ask applicants to consent to provide their own criminal record check to the third party. When the police have knowledge that a criminal record check will be subject to subsequent disclosure, should they be including youth record information within that check?
Numerous police services take the position that including youth record information in a criminal record check requested on consent is justified because it does not, strictly speaking, contravene the YCJA. (51) Pursuant to section 119(1), an individual may be authorized to access his or her own youth records. According to police services, when an individual consents to a criminal record check, police forces are therefore authorized to disclose pertinent youth record information on that criminal record check. Police services are of the opinion that they are not responsible if the individual then passes that information on to a third party. (52)
Provincial legislation facilitates the interpretation adopted by police services. When the PRCRA comes into force, it will dictate policies surrounding police record checks for adults and young people in Ontario. (53) As stated by the Honourable Yasir Naqvi, the bill introducing the PRCRA was intended to create a "clear, consistent and comprehensive legislative framework for police record checks for the first time in Ontario". (54) Specifically, it sought to clarify what police records can and cannot be released on record checks, and to "remove unnecessary barriers and increase opportunities for employment, volunteering, education and other community service while protecting both public safety and individual civil liberties." (55) On their face, the PRCRA's animating principles would seem to align with the YCJA's distinct goals of privacy protection, rehabilitation, and public safety. However, in the PRCRA's current form, this legislation fails to provide sufficient guidance to police when disclosing records that fall within the purview of the YCJA.
The central issue with the PRCRA is that, although it makes efforts to incorporate the YCJA's values into its disclosure scheme, its provisions do not give full effect to the YCJA's distinct legal framework. Notably, certain PRCRA provisions rebut the notion that youth records and adult records are wholly equivalent; for instance, section 11 of the PRCRA provides that any pertinent findings of guilt under the YCJA shall be disclosed on a record that is separate from any adult police records. (56) At the same time, however, the PRCRA fails to acknowledge the unique legal status of youth records under section 82(4) of the YCJA. As indicated in section 82(4), with certain exceptions, findings of guilt under the YCJA do not qualify as convictions. However, youth records do not appear to be included in the PRCRA's definition of "non-conviction information" as set out in section 1(1). (57) This omission blurs the practical distinction between a conviction and a finding of guilt under the YCJA, which Parliament included to give young people the opportunity to "make a fresh start." (58)
More importantly, however, the PRCRA appears internally inconsistent, which limits its ability to give full effect to the YCJA's privacy scheme. On the one hand, section 2( 1) of the PRCRA states that it applies to:
[P]ersons... who require a [police record check]... in order to screen [an] individual
a. for the purposes of determining his or her suitability for employment, volunteer work, a license, an office, membership in any body or to provide or receive goods or services; or
b. for the purposes of assessing his or her application to an educational institution or program. (59)
The PRCRA thus explicitly contemplates that police record checks issued on consent will be used by third parties for various screening processes. (60) Critically, section 9 of the PRCRA provides that police services shall not disclose information in a police record check "unless the information is authorized to be disclosed... in accordance with the Schedule." (61) The Schedule authorizes police services to disclose findings of guilt under the YCJA on all three levels of police record checks. (62) Therefore, a plain reading of section 9 and the Schedule appears to endorse the use of youth records for third party screening processes. This runs contrary to section 118(1) of the YCJA, which prohibits these many of these third parties from accessing such records. It also undermines section 129, which prohibits young people from engaging in this kind of subsequent disclosure.
On the other hand, facilitating unauthorized youth record access may run afoul of section 4(a) of the PRCRA. This interpretive provision, which applies to the entire PRCRA, reads as follows:
4. For greater certainty, nothing in this Act,
a. Permits or requires the disclosure of information whose disclosure is prohibited under... the Youth Criminal fustice Act (63)
While this provision clearly seeks to align the PRCRA's disclosure scheme with the YCJA, its uncertain scope creates confusion. As discussed below, when construed broadly, section 4(a), in conjunction with the YCJA's privacy provisions, prohibits disclosure under the PRCRA that facilitates downstream violations of the YCJA. However, on a narrow reading, section 4(a) is not inconsistent with section 9, because the direct recipient of the youth record, the young person, is authorized to receive it under the YCJA. (64) This narrow interpretation has been favoured by several police services, who consider their disclosure practices to be consistent with the PRCRA. (65) This uncertainty indicates that, on the whole, the PRCRA fails to provide adequate clarification to youth record disclosure policies.
Ultimately, the position taken by police services, as facilitated by the PRCRA, is problematic. The routine inclusion of youth record information on criminal record checks is a key contributing factor to the systemic problem of unauthorized access to youth records. There are several reasons why police forces should not disclose youth record information on a criminal record check. First, when a young person is under the age of 18, their consent to the criminal record check may be deficient. (66) Second, these youth record disclosure practices facilitate the violation of sections 118(1) and 129 of the YCJA. Third, these youth record disclosure practices undermine the YCJA's broader aims of the protecting the privacy and promoting the rehabilitation of young persons.
A. CONSENT MAY BE DEFICIENT
As previously mentioned, two of the most common third parties to request criminal record checks are employers and landlords. A 2014 study conducted by the )ohn Howard Society of Ontario found that in two representative Ontario counties, 51% of surveyed employers required a criminal record check during their hiring processes. (67) The rental market has also seen a sharp increase in the demand for criminal record checks. (68) While there are no Canadian data to identify the precise number of landlords who have adopted criminal record check screening procedures, anecdotal evidence suggests this practice is quite common. According to one ex-offender, while looking for housing online, "almost every place I click on [says] 'must pass criminal record check'... [j]ust seeing that is discouraging." (69) In both the housing and employment context, criminal record check requests are swiftly becoming a new norm.
The high frequency of criminal record checks is coupled with increasingly competitive housing and labour markets. The diminishing opportunities for affordable housing and employment are particularly salient for young people between the ages of 16-25. For example, Canadian labour market data indicates a worsening trend in youth joblessness, especially in large metropolitan cities like Toronto. (70) As a result, criminal record screening procedures place individuals with youth records in a difficult position. These young people effectively have two options. Option one is to violate section 129 of the YCJA and disclose his or her record to the unauthorized employer or landlord, which, in addition to being illegal, would likely result in prejudice towards his or her application. Option two is to refrain or withdraw from participating in the application process, thus extending the period of time that the young person may remain homeless or unemployed. It is under these prevailing socio-economic pressures that a young person often provides consent to a criminal record check.
When the consenting young person is under the age of 18, these coercive circumstances must be considered in conjunction with the young person's status as a minor. There is a strong argument to be made that a minor's consent to a criminal record check should not take legal effect. Canadian courts have long recognized that a minor's autonomy interests, which includes the ability to waive one's legal rights, are in tension with the protective duty of the state. (71) As stated by Abella J, "while many adolescents may have the technical ability to make complex decisions, this does not always mean they will have the necessary maturity and independence of judgment to make truly autonomous choices." (72) As a result, minors may only consent to waive their privacy rights when certain conditions are met.
This restriction on a minor's ability to waive his or her legal rights is reflected in the YCJA. For example, under section 146 of the YCJA, state actors bear the burden of demonstrating beyond a reasonable doubt that a young person fully understands and appreciates his or her right to silence and right to consult counsel before the young person may waive those rights and give an admissible statement to the police. (73) As recognized by the Supreme Court of Canada, the rationale behind this provision "lies in Parliament's recognition that young persons generally have a lesser understanding of their legal rights than do adults and are less likely to assert and exercise fully those rights". (74) Accordingly, the YCJA promotes the view that a minor may only waive his or her rights when the state can adduce compelling evidence that the young person understands and appreciates the right that is being waived, and that the right is being waived voluntarily. (75)
A minor's limited ability to waive his or her rights has also been recognized in the constitutional context. This was most recently addressed in the decision Simon Gillies et al v. Toronto District School Board. (76) At issue in that case was the constitutionality of a mandatory breathalyzer test that constituted a pre-condition for entry to a Toronto high school prom. Himel J of the Ontario Superior Court held that the mandatory breathalyzer test was a violation of the students' rights under section 8 of the Charter of Rights and Freedoms and could not be upheld under section 1.
In the course of her judgment, Himel J rejected the defendant's argument that the applicants, who were minors at the time, had effectively waived their section 8 rights by agreeing to go to the prom under the terms set out by the school board. Citing the Ontario Court of Appeal decision R v Wills, (77) Himel J canvassed the preconditions to a valid waiver of one's section 8 rights:
Doherty J.A. set out six criteria to be established on a balance of probabilities in order for the waiver doctrine to apply to an otherwise unauthorized search or seizure....[I]t must be established on a balance of probabilities that:
1. There was a consent, express or implied;
2. The giver of the consent had the authority to give the consent in question;
3. The consent was voluntary... and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
4. The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
5. The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and
6. The giver of the consent was aware of the potential consequences of giving the consent. (78)
The crucial question, as noted by Doherty JA and Himel J, was whether any consent was truly informed. While a minor's consent is theoretically possible, as acknowledged by Himel J, the "question of consent of persons under the age of majority is a complex one." (79) These authorities indicate that the viability of a minor's waiver of rights is contingent upon positive evidence that the minor's consent was informed and voluntarily made.
Police service disclosure practices should align with these principles as reflected in the constitutional and youth criminal contexts. In both situations, a young person's consent must be informed and voluntary to take legal effect. Critically, in most if not all circumstances, the police do not have evidence demonstrating that the minor understands that he or she is consenting to waive a privacy right with constitutional significance when consenting to a police record check for the purposes of subsequent disclosure. Indeed, it is difficult to conceive of a minor providing informed consent where the young person does not receive independent legal advice educating the minor about both the nature of his or her privacy rights and his or her ability to refuse to provide such a waiver. (80) This lack of evidence must be considered in conjunction with the fact that consent is requested under powerful socio-economic pressures, and with the overlay that the state serves a unique protective function toward young persons, who are recognized as inherently vulnerable. (81) These factors present compelling evidence that generally speaking, police services should not give effect to a young person's consent to a criminal record check when that person is under the age of 18.
B. CURRENT PRACTICES FACILITATE CONTRAVENTION OF THE YCJA'S PRIVACY PROVISIONS
In the event that a person's consent to youth record disclosure is deemed meaningful, police services should nonetheless exclude such information from a criminal record check. This is because by including this information, police services are facilitating the contravention of the YCJA's privacy provisions. Section 118(1) of the YCJA is unequivocal: "[e]xcept as authorized or required by this Act, no person shall be given access to a [youth] record". (82) Section 119(1) sets out an exhaustive list of those persons who may lawfully gain access to a youth record during the relevant access period. Landlords are not included in this list. Further, while section 119(1)(o) permits access to employers who are required by law to conduct a police record check, this provision does not apply to the vast majority of Ontario employers. (83) The Occupational Health and Safety Act, which applies to almost all employers in Ontario, does not oblige a criminal record check of current or prospective employees. (84) Therefore, a large proportion of third parties who request that applicants provide a criminal record check are not authorized by the YCJA to access youth records.
On a related note, section 129 prohibits individuals who have gained lawful access to a youth record from subsequently disclosing the record to unauthorized third parties. As stated by Murray J, "[t]he issue of disclosure must be considered in the light of s. 129 and s. 118, which have the combined effect of prohibiting disclosure by the recipient of a record... unless authorized under the Act." (85) Critically, the YCJA does not confer special disclosure rights on the young person to whom a record relates. (86) As Weagant J notes, "once a [youth] record is accessed, no person, including the young person, can give access to another person or party except as authorized or required by the YCJA." (87) Accordingly, when young people disclose their youth record to a landlord or employer that is not listed under section 119(1), they are violating section 129 of the YCJA.
In many cases, police services have real or constructive knowledge that a young person requesting a criminal record check intends to subsequently disclose the record to unauthorized third parties. This constructive knowledge is evidenced by section 2(1)(a) of the PRCRA, which explicitly identifies third parties such as employers and providers of goods and services (such as landlords) as criminal record check recipients. Furthermore, police services often know the intended third party recipient of a criminal record check by virtue of the police's administrative policies. According to the Guidelines for Police Record Checks (issued by the Ontario Association of Chiefs of Police), criminal record check application forms require applicants to state their reason for requesting the check. (88) These observations indicate that police services are often aware that a youth record is destined for an unauthorized third party.
In light of this real or constructive knowledge of subsequent disclosure and unauthorized access, by continuing to include youth information within criminal record checks, police services are facilitating the contravention of the YCJA. The police are well aware that youth offenders often intend to deliver their criminal record checks to third parties. By failing to exercise discretion when releasing youth record information, police forces are operating a service that knowingly provides unauthorized third parties with an unobstructed route to access youth records. In this way, police disclosure practices foster the coercive conditions that compel a young person to contravene section 129, and permit unauthorized third parties to circumvent section 118(1). Put simply, current youth record disclosure practices enable these third parties to do indirectly what they cannot do directly.
One could object that once in force, section 4(a) of the PRCRA will obstruct this pathway to unauthorized youth record access. Indeed, as noted above, a broad interpretation of section 4(a) is capable of preventing disclosure policies that facilitate YCJA violations. However, this interpretation of section 4(a) has not been favoured by police services. (89) After the PRCRA was passed in 2015, several of Ontario's police stations have declared that their disclosure practices have been revised to comply with the PRCRA. (90) Notably, these updated practices call for youth record disclosure on all three levels of police record checks, despite the police's explicit recognition that these records are accessed by unauthorized third parties. (91) These updated regional guidelines indicate that police forces consider their current disclosure practices to be consistent with the letter of the PRCRA. This suggests that unless police services revisit their interpretation of the PRCRA, section 4(a) is unlikely to protect young persons' privacy interests during the PRCRA's implementation.
In a different vein, one may also argue that in light of the plain text of section 9 and the Schedule of the PRCRA, police services cannot be held accountable for facilitating YCJA violations. (92) However, this contention fails to acknowledge the obligation of police forces to exercise discretion to uphold Canada's criminal justice system. As noted by the Ontario Court of Appeal in a discussion concerning police policies, "[a]n officer's duties and hence his or her responsibilities cannot be equated with instructions as to how those duties and responsibilities should be carried out." (93) The Supreme Court has recognized that public officers (such as police services) are often accorded discretion to make a choice among possible courses of action or inaction; accordingly, state actors must exercise their discretion "in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature". (94) These authorities affirm that the police should exercise discretion in a reasonable way when discharging their legal duties.
These principles governing police discretion extend to the implementation of record disclosure policies that fall within the purview of the YCJA. The YCJA's privacy scheme accords significant discretion to youth record keepers, which include police services. Under section 119(1), a record keeper's mandate to disclose youth police records is discretionary, not mandatory. (95) As stated by Welsh IA, "[s]ubsection 119(1) provides a list of persons who 'shall' be given access to youth justice court records, and 'may' be given access to police or government department records." (96) As observed by Hall J,
Section 119 gives discretion to the record keeper, as to whether to honour the request for production of the [youth police] record. Should that record keeper exercise his or her own discretion against producing the [youth police] record, the applicant can then make application to a youth court judge. (97)
Similarly, section 124, which states that "[a] young person to whom a record relates and his or her counsel may have access to the record at any time", has been interpreted in light of the discretion accorded to record keepers under section 119(1). (98) Courts have found that section 124 does not give rise to an absolute right for a young person to access all types of youth records relating to him or her. (99) Taken together, these observations indicate that the YCJA intended for record keepers, including the police, to exercise discretion in implementing its privacy provisions.
Moreover, the case law indicates the police have a particular duty to exercise their discretionary powers in line with the broader goals of the YCJA. In a case involving the laying of charges against a young person, the Nova Scotia Provincial Court found that the police must exercise discretion in accordance with the YCJA's essential values, specifically those referenced in the preamble. As stated by Atwood J:
Police are entitled to exercise their lawful discretion in the laying of charges; however, in relation to young people, law-enforcement agents ought always to be mindful of the principles that are behind the Youth Criminal Justice Act... as outlined in the preamble... (100)
This reasoning can be extended to the youth record context. With reference to YCJA's preamble, Fish J has noted that "[i]n keeping with its international obligations, Parliament has sought... to extend to young offenders enhanced procedural protections, and to interfere with their... privacy as little as possible." (101) In a similar vein, the YCJA's Declaration of Principle affirms the YCJA's commitment to the rehabilitation and privacy protection of young persons. (102) These principles should guide the exercise of police discretion when police services administer criminal record checks that are bound for third parties who are prohibited from access under the YCJA.
Ultimately, these observations indicate that once in force, the plain text of section 9 and Schedule of the PRCRA need not restrain the police from exercising any discretion when carrying out criminal record checks that implicate the YCJA. As gatekeepers to confidential youth record information, police forces play a critical role in the realization of the YCJA's privacy scheme. As stated by Chabot J for the Cour du Quebec,
[The police]... are [some] of the most important actors to whom the legislator has imposed the power and duty to enforce the [YCJ4] and its underlying values. Police Officers... cannot ignore the fundamental principles of the [YCJA]. (103)
It follows that the police forces have an obligation to exercise discretion in the PRCRA's implementation. Despite these authorities, the police forces who have adopted the PRCRA's disclosure framework do not appear to exercise any meaningful discretion when disclosing youth record information, routinely including it on all levels of police record checks that are bound for unauthorized third parties. By refraining from exercising discretion while carrying out criminal record checks, polices services are failing to uphold the privacy protections that they have been entrusted to safeguard under the YCJA.
C. CURRENT PRACTICES ARE CONTRARY TO THE SPIRIT OF THE YCJA
In addition to facilitating the contravention of the YCJA's privacy provisions, current police record disclosure practices are problematic because they undermine the broader rehabilitative purposes of the YCJA. By disclosing youth record information on criminal record checks, police services encourage third parties to engage in misguided youth record screening practices that prevent young people from reintegrating into their communities and getting their lives back on track. (104)
Many researchers have remarked that uninformed third parties such as private employers and landlords often overestimate the predictive value of a criminal record. (105) According to one study by Harris and Keller, employers and other agencies' appraisal of the risk associated with a criminal record "depart[s] markedly from criteria included in commonly accepted and validated assessments of offender risk." (106) This is particularly salient in the context of youth records. There is a large and convincing body of research that a majority of adolescents engage in some form of delinquent behaviour. (107) Only a small proportion of delinquent acts come to the attention of the police, and of those that do, there is only a small proportion that result in arrest. (108) As a result, there is an element of arbitrariness that determines which young people may have a criminal record that eventually ends up in the hands of a landlord or employer.
Despite the limited probative value of youth records, they have an alarming influence on housing and tenant selection practices. In the John Howard Society of Ontario study mentioned above, researchers made the following findings that illustrate the effects of a criminal record on hiring practices:
* Nearly half of Ontario employers surveyed reported negative and stigmatizing perceptions of young people (ages 15-29) with criminal records. These included character assessments that individuals with criminal records are not as honest, are "less reliable," and a "greater risk/liability" than employees without a criminal record.
* 15% of respondents reported that they would not consider hiring an applicant with a criminal record, regardless of the nature of the record, the time that had past since the record was acquired, or its relevance to the job position.
* While a majority of respondents claimed that they would still consider hiring someone with a criminal record, over 60% of employers indicated that they had never knowingly hired anyone with a criminal record; this is despite the fact that half of employers had a criminal record check come back positive within the last 12 months. (109)
The problems associated with these findings are aptly described by John Howard Society of Ontario in the following way:
[Despite] a person's qualifications and capacity to undertake a specific role, the mere presence of a police record is often the defining factor in rejecting an otherwise ideal candidate, regardless of the nature of the record and its relevance to the position. [This constitutes] blatant and blanket discrimination. (110)
While this study did not research the exclusive effect of a youth record on hiring practices, it nonetheless indicates an unjustifiable systematic bias in Ontario against employing individuals who have had previous contact with the Canadian criminal justice system.
The prejudicial effect of criminal record checks has also been traced in the rental market. In a US experimental study of records-based screening, researchers found that when disclosed, a criminal record reduces the probability of prospective tenants receiving a landlord's invitation to view an apartment rental by more than 50%. (111) In Canada, this trend was recently affirmed by a qualitative study by Quirouette et al investigating the experiences of homeless youth in Toronto and Halifax. Based on participants' experiences, researchers concluded that "police records... along with the black mark of being on social assistance or disability supports, can effectively exclude young people from market housing". (112) Ultimately, this institutional practice of disclosing youth record information on criminal record checks facilitates exclusionary screening practices that preclude young people from opportunities to secure adequate housing and gainful employment.
It is also important to recognize the disproportionate impacts that youth record disclosure has on marginalized groups. In an influential experimental study conducted in the US by Pager, he found that when 23-year-old males with similar qualifications applied to the same entry-level jobs, African Americans with a criminal record were significantly less likely to be invited for an interview callback than white males with a criminal record. (113) This research suggests that associations between race and crime can detrimentally impact interpersonal evaluations, thus exacerbating rates of unemployment for certain racialized minorities.
In addition, disproportionate impacts arise because some minorities, such as Aboriginal youth, are overrepresented in the youth criminal justice system. (114) It follows that Aboriginal youth are more likely to have an accessible youth record when compared with their non-Aboriginal peers. (115) Accordingly, police disclosure practices contribute to the employment and housing gap between Aboriginal and non-Aboriginal young persons, thus compounding the former group's experiences of disadvantage and discrimination. (116)
Finally, the harmful effects of unstable housing and unemployment are likely to be exacerbated for minority youth lacking financial or emotional supports. For instance, those involved in the child welfare system face disproportionate harms from youth record disclosure, because these young people generally do not have support systems to rely upon during periods of financial hardship or homelessness. (117) Taken together, these observations further problematize the police's current youth record disclosure scheme, as it serves to perpetuate the disadvantage of marginalized young persons.
These aforementioned problems are further compounded by the fact that the prejudicial effects of youth record disclosure correspond with increased recidivism rates. For example, unemployment has been recognized as one a predictor of criminal recidivism; (118) correspondingly, employment is a strong protective factor against recidivism, particularly for youth. (119) Similarly, stable housing plays a critical role in the successful reentry and reintegration of ex-offenders. (120) Quirouette's study found that due to the challenges associated with securing private rental housing, many young Canadians with criminal records are forced to opt for unstable and oftentimes illegal housing options. (121) Ultimately, current criminal record check practices, which facilitate discrimination based on youth records, increase recidivism rates by promoting unemployment, unstable housing, and homelessness.
As a result of discriminatory screening practices facilitated by current police record disclosure policies, young people are trapped in a vicious cycle. While a steady job and stable housing are both recognized as important protective factors against recidivism, individuals with a youth record are unable to access these benefits precisely because they were previously involved with the youth criminal justice system. Their inability to secure these fundamental needs culminates in a cascade of detrimental impacts on a young person's life, including exacerbated mental and physical health problems, harmful coping mechanisms such as substance abuse, perpetuation of disadvantage, and further conflict with the law. (122) Ultimately, current youth record disclosure practices facilitate the formation of barriers that prevent young people from reintegrating into the community and getting their lives back on track.
Police services must recognize that by implementing an institutional framework that allows easy access to youth record information, they are not just passively permitting, but actively facilitating practices that attack the broader aims of the YCJA. As stated by Welsh [A for the Newfoundland and Labrador Court of Appeal:
[The privacy provisions of the YCJA make it] clear that Parliament recognizes that children, including teenagers less than eighteen years of age, are developing and may make poor choices which may result in criminal proceedings. In appropriate circumstances, the Act provides a young person with the opportunity to begin life as an adult with a clean slate. (123)
Current police disclosure practices, which are based on a narrow interpretation of the PRCRA, do not embody this ideal. The PRCRA as it is currently implemented does not account for "appropriate circumstances" that would permit a young person with an accessible youth record to transition into adulthood with a "clean slate." Police services disclose findings of guilt under the YCJA on all three forms of police record checks. This practice undermines the YCJA's privacy protections. Further, it negates the presumption of diminished moral blameworthiness by continuing to hold young people accountable for their actions long after the completion of their sentence. Finally, these practices promote recidivism, which, in addition to undermining the goals of rehabilitation and reintegration, threatens the safety of the public by increasing the occurrence of criminal behaviour. (124)
V SUGGESTIONS FOR REFORM
As previously mentioned, police record disclosure has been a recent topic of heated debate, social activism, and legislative action. Before enacting the PRCRA, most criticism levelled against police disclosure practices related to the unpredictable and unsystematic inclusion of adult non-conviction information on the different levels of police record checks. (125) While the PRCRA will solve this issue by stipulating that most non-conviction information may only be disclosed in vulnerable sector checks when it meets the criteria for exceptional disclosure, (126) it does not adequately address police disclosure policies that facilitate unlawful third party access to youth records.
In order to give meaningful effect to the privacy principles enshrined in the YCJA, the YCJA cannot act as a stand-alone piece of legislation. The practice of issuing police record checks is complex and varies depending on jurisdiction. It is therefore critical that the YCJA be bolstered by complementary provincial legislation that aligns with the YCJA's privacy scheme and broader goals. This article identifies two ways to bring Ontario's youth record disclosure practices in line with the YCJA. The first is to reform provincial legislation to prevent unauthorized third parties, such as landlords and employers, from requesting access to youth records. The second is to shut down this unobstructed route to unlawful subsequent disclosure by amending or re-interpreting the PRCRA.
The first option for reform is to employ provincial legislation to target the third party request for youth record disclosure. In Ontario, this may be achieved by amending the Ontario Human Rights Code ("OHRC"). (127) In broad strokes, the intent of this legislation is to promote equal rights and opportunities without discrimination in areas including jobs, housing, and services. (128) By prohibiting discrimination on the basis of a youth record, landlords and employers may be motivated to adjust their application procedures to exclude youth record checks from their criminal record check inquiry.
This has proven to be an effective means of preventing third party disclosure requests in the analogous context of record suspensions. In most cases, it is discriminatory and contrary to the OHRC to consider a "record of offences", which can include suspended records, for the purposes of employment. (129) As a result, it is common practice for employers to explicitly exclude record suspensions from their criminal record inquiry, unless they can demonstrate a bona fide and reasonable basis for considering such a record in the interest of public safety. (130)
To better promote the privacy protections of the YCJA, the definition of "record of offences" could be expanded to include youth records, thus incentivizing third parties to direct that youth records be excluded from criminal record checks. Indeed, the Ontario Human Rights Commission itself has suggested that this definition could be expanded to include other non-conviction information. (131) This solution is further bolstered by section 82(3) of YCJA, which provides that federal employers are prohibited from requesting an applicant to disclose that "he or she has been charged with or found guilty of an offence in respect of which he or she has, under [the YCJA] or the Young Offenders Act... been discharged absolutely, or has completed the youth sentence". (132) Amending the OHRC would simply emulate this federal prohibition at the provincial level.
Similar amendments may be implemented in the housing context. Section 21(3) of the OHRC, along with its complementary regulations, circumscribes what information landlords may consider about a prospective applicant during a tenant selection process. (133) Notably, the OHRC does not prohibit landlords from discriminating against an applicant with a record of offences. By amending section 21(3) to prohibit discrimination based on a youth record, a similar chilling effect on such requests may be achieved in the housing context.
The most significant advantage of this option for reform is its simplicity. Rather than engaging in a complex restructuring of Ontario's disclosure regime, this remedy simply targets the third party request for unauthorized disclosure. Through examining the history of record suspension requests, there is compelling evidence that these modest changes to the OHRC would be sufficient to preclude most cases of unauthorized subsequent disclosure to employers and landlords. Furthermore, this remedy does not present any obstacles for young person seeking to access his or her own youth record without the intent to disseminate it.
The drawback associated with this remedy, however, is its limited scope. Employers and landlords are but two examples of the unauthorized third parties that are able to gain access to youth records. This solution will not dissuade a wide range of other interested third parties, such as volunteer organizations, businesses, and educational institutions from continuing to make use of this route to unauthorized youth record access. (134) While elegant, this solution is underinclusive; rather than shutting down the avenue to unauthorized youth record access, it merely limits the number of people who may traverse it.
Accordingly, a more effective response may be to reformulate the police record disclosure regime. Rather than targeting the request, this response targets the route to unauthorized disclosure. In Ontario, this solution can be achieved through amending or re-interpreting the PRCRA. To effectively obstruct the avenue to unlawful youth record access, it is necessary to reassess when youth record information should be included in a police record check. Section 9 of the PRCRA directs for the disclosure of findings of guilt under the YCJA (within the applicable access period) on all three levels of record checks. (135) Section 2(1) of the PRCRA contemplates that the confidential information contained in these checks will be subsequently disclosed by the recipient to unauthorized third parties. (136) As discussed above, these PRCRA provisions have been implemented to facilitate contravention of sections 118(1) and 129 of the YCJA.
There are a number of ways to reconfigure the current youth record disclosure scheme to prevent these downstream violations of the YCJA. First, it is plausible that police services could employ sections 118(1) and 129 of the YCJA and section 4(a) of the PRCRA to ground a lawful reinterpretation of their disclosure requirements. For ease of reference, section 4(a) of the PRCRA states that "nothing in this act... permits or requires the disclosure of information whose disclosure is prohibited under... the Youth Criminal Justice Act". (137) Although disclosure is not defined in the PRCRA, the YCJA defines it as "the communication of information other than by way of publication." (138) The jurisprudence has not clarified what qualifies as "communication" under the YCJA. In an analogous context involving confidential information, communication has been considered to implicitly mean:
[a]n intention to impart, convey, or exchange ideas, knowledge, etc. (or at the very least the awareness that that may be the result). (139)
In other words, awareness that information may reach an individual may qualify as "communication" to that individual. As noted above, police agencies are often aware when a criminal record check containing youth record information is bound for an unauthorized third party. (140) In light of this knowledge, the scope of "permit[ting] disclosure" could extend beyond direct communication to the subject of the record check. By including youth record information on a criminal record check under these circumstances, the police are arguably "permit[ting] the disclosure" or communication of confidential youth record information to parties who are prohibited from access under the YCJA.
Through exercising their discretionary power, police services could interpret their disclosure duties under the PRCRA as being circumscribed by sections 118(1) and 129 of the YCJA and section 4(a) of the PRCRA. When the police have actual knowledge that a youth record will be delivered to a third party that is not listed under section 119(1) of the YCJA, the police could withhold any pertinent youth record information from the criminal record check in order to avoid "permitting] disclosure" that runs contrary to sections 118(1) and 129 of the YCJA. In order to maintain public transparency, police services could prepare a letter to accompany all criminal record checks bound for unauthorized third parties. This letter would explain that the criminal record check does not address findings of guilt under the YCJAJ. (141) To promote neutrality, police agencies could issue this letter to all intended third parties that fall outside the scope of section 119(1) of the YCJA, regardless of whether the applicant in question has an accessible youth record. This response is in keeping with section 4(a) of the PRCRA, which signals that the Ontario legislature intended the PRCRA to operate in harmony with the YCJA's disclosure scheme. (142) This interpretation bolsters the YCJA's privacy protections by disavowing practices that are antithetical to the YCJA's tightly regulated privacy framework.
The central shortcoming associated with this solution is that in light of the plain text of section 9 and the Schedule of the PRCRA, police services may be reluctant to engage in this statutory interpretation process. They may point out that on its face, the PRCRA appears to indiscriminately mandate youth record disclosure on all three levels of police record checks. However, this criticism disregards the fact that the PRCRA's disclosure scheme as set out in section 9 and the Schedule is ultimately subject to section 4(a), which applies to the PRCRA as a whole. Section 4(a) suggests that the Ontario legislature intended to promote an interpretation of the PRCRA that is in accordance with the YCJA.
Relatedly, one might challenge this re-interpretation by construing the scope of "permitfting] disclosure" under section 4(a) narrowly. One may contend that section 9 simply "permit[s] disclosure" of a youth record to the young person; pursuant to sections 119(1) and 124 of the YCJA, a young person is authorized access to his or her record. On this view, any downstream unauthorized disclosure would fall outside the purview of section 4(a) of the PRCRA. The fundamental issue with this narrow interpretation has been outlined throughout this article. This interpretive strategy goes against the spirit of the YCJA. Under a narrow reading of section 4(a), the PRCRA may permit disclosure that proves antithetical to the YCJA's goals of privacy protection and rehabilitation. Moreover, if employed by police, this interpretation does not accord with the police's obligation to exercise their discretion in a manner that gives effect to the values underlying the YCJA.
In order to avoid these interpretive issues, an alternative solution is to simply amend the PRCRA to more clearly align with the privacy framework of the YCJA. Amendments to the PRCRA can take different forms. A rigorous approach that is faithful to the YCJA's privacy scheme would prohibit the disclosure of youth record information on all three levels of police record checks when the intended recipient is not listed in section 119(1). A second, moderated approach would treat youth record information like other non-conviction information, which is only disclosed within a vulnerable sector check on a discretionary basis if it meets the criteria for exceptional disclosure. (143)
This PRCRA-targeted remedy has its own distinct drawbacks. One downside to this solution is that restricting a young person's ability to disclose his or her youth record may be viewed as unsolicited state paternalism. Further, these changes are arguably overbroad as they make it more difficult for a young person who does not intend to disseminate his or her record to obtain it from the police. This concern may be addressed in part by cr. ting4., t department records." ate between the three types of records discussed in Sections 114-116 of the YCJA. YCf A, ly: see afting amendments to the PRCRA that do not prevent a young person from accessing his or her youth police record when the young person indicates that they seek their record for private use. (144) Further, a young person will still be able to gain access to his or her youth court records and government records under sections 114 and 116 of the YCJA. (145)
Another downside to this PRCRA-targeted solution is that by shutting down all routes to unauthorized youth record disclosure, those with a bona fide and reasonable interest in a youth record would be barred from access that may promote public safety. Although this concern may be alleviated in part by permitting the discretionary disclosure of youth records during a vulnerable sector check, this would simultaneously create an enduring avenue for unauthorized youth record access in compelling circumstances.
These drawbacks, however, must be weighed against the advantages. Firstly, this solution addresses concerns regarding the potential deficiency of a young person's consent by disallowing the option to consent to include youth records on a criminal record check. Further, these reforms ensure that confidential youth record information remains confidential. Unlike the OHRC amendments, which would only prevent unauthorized access in the areas of housing and employment, this PRCRA-directed remedy bars all unauthorized third parties from gaining access to a youth record by way of a standard criminal record check. (146) Most importantly, this solution has the benefit of ensuring that the YCJA's overarching aims and privacy protection scheme, as willed by the Canadian legislature, are comprehensively realized at the provincial level.
Alternatively, it has been suggested by some that instead of amending the PRCRA, youth privacy rights can receive adequate protection through the development of the PRCRA's regulations. (147) However, due to the PRCRA's apparent inconsistencies, which impede effective enforcement of the YCJA's privacy scheme, it is difficult to see how regulations alone could be sufficient to align the PRCRA with the YCJA's broader goals of privacy protection and rehabilitation. For example, suggested regulations include bolstering section 11 of the PRCRA by ensuring that separate adult police record and youth record documents make no reference to one another other; making it 'optional' to receive youth records as part of a police record check; (148) and including a 'warning' page to inform individuals about the prohibition against subsequent disclosure when they receive their own criminal record check that contains youth record information. The problem is that within each of these regulations, the onus implicitly remains on the young person to assert his or her own privacy rights. Considering the powerful socio-economic circumstances under which criminal record check requests occur, young people are often not in a position to assert their rights themselves. As a result, these proposed regulations would not effectively prevent unauthorized third parties from accessing classified youth record information. These "halfway house" measures are thus insufficient to realize the privacy protections that lie at the heart of the YCJA. Indeed, this patchwork of protection is arguably dangerous, as it ensures circumstances are never so dire as to compel legislative change.
This paper has sought to identify some of the contemporary problems relating to youth record disclosure by exploring how it impacts two areas of a young person's life: housing and employment. It suggests that in such contexts, youth records should not be disclosed for several reasons: first, a young person's consent may be deficient; second, the uses to which these records will be put contravene the privacy provisions of the YCJA; and third, these practices undermine the YCJA's broader aims of privacy protection and rehabilitation of young persons. This paper highlights provincial legislation's pivotal role in implementing the overarching goals of the YCJA and recommends some suggestions for reform. These include enacting provincial legislation to disincentivize landlords and employers from inquiring about youth records, or re-interpreting or amending the PRCRA to remove youth record information from criminal record checks that are bound for unauthorized third parties.
Ultimately, while this paper has illustrated the impacts of youth record disclosure policies through the lenses of employment and housing outcomes, the knock-on effects of disclosure practices extend far beyond these two facets of a young person's life. Young people with youth records are facing ever-increasing barriers to opportunities in areas as diverse as international travel, volunteerism and education. (149) At the cusp of entering adulthood, an especially formative point in one's life, many young people find themselves unable to obtain safe housing, establish a career, or pursue certain post-secondary studies. The effects of this are immeasurable, long-lasting, and antithetical to the rehabilitative and reintegrative purposes of the YCJA.
Pursuant to section 82(1) of the YCJA, after the termination of a youth sentence, a young person is deemed not to have been found guilty or convicted of the offence. However, under the current youth record disclosure scheme, the most severe consequences of committing a youth offence arguably occur after a youth sentence has been completed. This represents a critical failure on the part of police services to give full effect to the privacy protections and overarching aims of the YCJA. As recently recognized by Then J, the police force's failure to respect and protect young people's privacy rights is not the result of "isolated mistakes or inadvertence", but rather stems from "institutional, or systemic indifference that has resulted from longstanding policies". (150) Criminal record checks are positioned at the centre of a destructive cycle that contributes to recidivism, perpetuates disadvantage, and continues to punish young people for actions they are no longer deemed in law to have committed. It is critical that police forces recognize their responsibility to give full effect to the YCJA's privacy scheme, for this will encourage Canada's young people to move beyond their previous conduct and empower them to reach their full potential.
CHANTELLE VAN WILTENBURG
* BA in English Literature (McGill University), )D with Honours (University of Toronto). This paper reflects my personal views and is derived from a term paper written for a Youth Criminal lustice course. I am deeply grateful to the Justice for Children and Youth Clinic for inspiring me to research this topic, and to Professor Brock fones for his guidance and encouragement. I would also like to thank my friends and my parents for their enthusiasm and support.
(1) Please note that the research in this article is current to March 2018. Accordingly, it does not consider O Reg 349/18.
(2) See e.g. The University of British Columbia, "Criminal Record Check", online: <https://www.grad.ubc.ca/prospective-students/application-admission/criminal-record-check>.
(3) SC 2002, c 1 [YCJA].
(4) Canadian Civil Liberties Association, "False Promises, Hidden Costs: The Case for Reframing Employment and Volunteer Police Record Check Practices in Canada" (2014) at 7, online: <https://www.ccla.org/recordchecks/falsepromises> ["False Promises"].
(5) Bill 113, An Act Respecting Police Record Checks. 1st Sess, 41st Leg, 2015 (assented to 3 December 2015), SO 2015, c 30 [PRCRA].
(6) See e.g. lohn Howard Society of Ontario, "Submission: MCSCS Police Record Checks Reform Act Regulations Consultation" (2016), online: <http://johnhoward.on.ca/wp-content/uploads/2016/04/Police-Records-Check-Regulations-MCSCS-Submission-2016.pdf> ["Submission"].
(7) See e.g. "False Promises", supra note 4 at 17-19.
(8) See e.g. British Columbia's Criminal Records Review Act, RSBC 1996, c 86 [CRRA].
(9) Through surveying provincial and local disclosure practices, the Canadian Civil Liberties Association has suggested that police record checks can generally be divided into the following three groups: (1) police criminal record checks; (2) police information checks; and (3) police vulnerable sector checks: see "False Promises", supra note 4 at 17.
(10) The PRCRA, supra note 5, comes into force on November 1, 2018. See Police Record Checks Reform Act. 2015, Proclamation, 25 April 2018, (2018) O Gaz 151:19. 2610.
(11) Ibid, s 8(1).
(12) Section 9 reads as follows: A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule." Ibid, s 9, Schedule.
(16) For the requirements governing exceptional disclosure, see ibid, s 10(2). In essence, this provision directs that in exceptional circumstances where an individual has a non-conviction record relating to offences that disclose a "pattern of predation" that presents a risk to vulnerable persons, that information may be disclosed on a vulnerable sector check.
(17) Ibid, s 9, Schedule.
(18) YCJA, supra note 3, s 2(1).
(19) Ibid, ss 114-116. See also Brock (ones, Emma Rhodes & Mary Birdsell, Prosecuting and Defending Youth Criminal Justice Cases: A Practitioner's Handbook (Toronto: Emond, 2016) at 321 [Jones, Rhodes and Birdsell].
(20) Ibid, s 115(1).
(21) Criminal Records Act, RSC 1985, c C-47; Privacy Act, RSC 1985, c P-21.
(22) YCJA. supra note 3. s 3(1 )(a)(ii); Toronto Star Newspaper Ltd v Ontario, 2012 ONCJ 27 at para 7, 289 CCC (3d) 549 [Toronto Star].
(23) FN (Re), 2000 SCC 35 at para 14,  1 SCR 880.
(24) Toronto Star, supra note 22 at para 40.
(25) Ibid at para 41; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act. 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7.
(26) Toronto Star, supra note 22 at paras 41 -43.
(27) See British Columbia, Office of the Information and Privacy Commissioner, Use of Police Information Checks in British Columbia, by Elizabeth Denham, Investigation Report F14-01 (2014) at 29, online: <https://www.oipc.bc.ca/investigation-reports/1631> [Denham, "BC Investigation Report"].
(28) YCJA, supra note 3, s 3(l)(b)(iii) [emphasis added].
(29) Toronto Star, supra note 22 at para 37.
(30) United Nations Convention on the Rights of the Child, 20 November 1989,1577 UNTS 3 (entered into force 2 September 1990), online: <http://vAvw.ohchr.org/Documents/ProfessionalInterest/crc.pdf> [UNCRC]; United Nations Standard Minimum Rules for the Administration of luvenile Justice ("The Beijing Rules"), GA Res 40/33, UNGAOR, 40th Sess (1985), online; <http://www.un.org/documents/ga/res/40/a40r033.htm> [Beijing Rules].
(31) UNCRC, supra note 30, art 8; Beijing Rules, supra note 30, s 8.
(32) Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817 at paras 69-70, 174 DLR (4th) 193, L'Heureux-Dube ) (international treaties and conventions can inform a contextual approach to statutory interpretation even if they are not incorporated into domestic law) [Baker].
(33) YCJA, supra note 3: "WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms... and have special guarantees of their rights and freedoms..."
(34) Interpretation Act. RSC 1985, c 1-21, s 13 ("the preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object").
(35) For example, as stated by Fish J in R v RC, 2005 SCC 61 at para 41,  3 SCR 99, "[i]n keeping with its international obligations, Parliament has sought... to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible: see the United Nations Convention on the Rights of the Child... incorporated by reference in the YCJA" [emphasis added] [RC].
(36) For example, in R v DB, 2008 SCC 25 at paras 85-87, [2008) 2 SCR 3, Abella I drew on the Beijing Rules to support her conclusion that a young person enjoys a presumptive entitlement to the YCJA's publication ban protections.
(37) Supra note 3. Pursuant to section 163 of the YCJA, this statutory scheme also governs the access and disclosure of records that were previously dealt with under the Young Offenders Act and the Juvenile Delinquents Act.
(38) SL v NB (2005), 252 DLR (4th) 508 at para 54, 2005 CanLII 11391 (Ont CA).
(39) YCJA, supra note 3, s 119(1).
(40) Ibid, s 119(1)(o).
(41) Ibid, s 119(1)(s)(ii).
(42) See e.g. Re Application for Release of YCJA Records, 2011 ONCJ 441, 97 WCB (2d) 378; R v (W) Z, 2016 ONCJ 490,  OJ No 4254; R v F(S), 2007 ONC) 577, 88 OR (3d) 304.
(43) YCJA, supra note 3, s 82(1).
(44) Ibid, s 82(4).
(45) R v C(K), 2008 SKPC 96 at para 20, 319 Sask R 94 [C(K)].
(46) See YCJA, supra note 3, s 119(2).
(47) Ibid, s 124.
(48) Ibid, s 129.
(49) Ibid, s 138.
(50) The literature does not contain any statistical data speaking to the prevalence of unauthorized youth record access by third parties. This is likely because no such studies have been conducted. However, anecdotal evidence indicates that this practice is common. For example, the Justice for Children and Youth Clinic (a Legal Aid Ontario specialty legal clinic) regularly receives inquiries from young people concerned about third party access to, and use of, youth records by employers and landlords. In the clinic's experience, employers seeking youth record access span both the private and public sector: Interview of Mary Birdsell, Executive Director of the Justice for Children and Youth Clinic (February 1, 2018). Similarly, Youth Employment Services, an organization that provides employment and job placement services to young people in Canada, has worked with clients who have not been extended a job interview or job offer by virtue of having an accessible youth record: Interview of Tim Lang, President and CEO of Youth Employment Services (February 12, 2018). In addition, the Government of Canada has acknowledged the practice of employers to seek access to youth records. As stated on its website on a page concerning youth records, "employers can ask that a young person complete a criminal record check in order to prove that they do not have a record. Young persons have the right to refuse to provide a criminal record check, although doing so may jeopardize the employment opportunity": Canada, Department of Justice, "Youth Records" (2017) Department of Justice (website), online: <http://www.justice.gc.ca/eng/cj-jp/yj-jj/tools-outils/sheets-feuillets/recor-dossi.html>. See also Justice for Children and Youth, "Youth Records" (2013) Legal Rights Wiki (website), online: <http://jfcy.org/en/rights/youth-records-and-other-data/>; Community Legal Education Ontario, "Getting a Job with a Record" (August 2015) Youth Criminal Law (website), online: <http://youth.cleo.on.ca/en/getting-job/employers-questions/>.
(51) "False Promises", supra note 4 at 22.
(52) (ones, Rhodes & Birdsell, supra note 19 at 307.
(55) It is worth noting that rather than setting out to address the particular problems pertaining to youth record disclosure practices, the PRCRA sought to address increasing criticism relating to broader systemic disclosure issues, such as the unpredictable and indiscriminate disclosure of "non-conviction" and "non-criminal" information on police record checks: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Part, 1st Sess, No 101 (29 September 2015) at 5413 (Hon Yasir Naqvi).
(54) Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41 st Part, 1 st Sess, No 92 (5 lune 2015) at 4897 (Hon Yasir Naqvi).
(56) Supra note 5. However, both records are included within the same police record check.
(57) Section 1(1) of the PRCRA, ibid, states: "In this Act... 'non-conviction information' means, subject to subsection (4), information concerning the fact that an individual was charged with a criminal offence if the charge, (a) was dismissed, withdrawn or stayed, or (b) resulted in a stay of proceedings or an acquittal."
(58) C(K), supra note 45 at para 20.
(59) Supra note 5 [emphasis added].
(60) Pursuant to section 8(3) of the PRCRA, ibid, all criminal record checks can only be conducted if the individual to whom the record relates gives his or her consent.
(62) Ibid, s 9, Schedule.
(63) Ibid, s 4(a).
(64) See YCJA, supra note 3, ss 119(1), 124.
(65) For instance, the Toronto Police Service website indicates that they include findings of guilt under the YCJA on criminal record checks: see Toronto Police Service, "Background Checks: Criminal Record Check" (2018) Toronto Police Service (website), online: <https://www.torontopolice.on.ca/background-checks/criminal-record-check.php> [TPS, "Record Check"]. The Toronto Police Service also considers their disclosure practices to accord with the PRCRA's requirements: "[s]ince December 2015, the Toronto Police Service has changed business practises [sic] to ensure the new legislative requirements are met in accordance to Bill 113, Police Record Checks Reform Act": Toronto Police Service, "Background Checks: Announcements" (2018) Toronto Police Service (website), online: <https://www.torontopolice.on.ca/background-checks/> [TPS, "Announcements"].
(66) For the purposes of the subsequent discussion and unless otherwise indicated, "young person" refers to any individual who still has an accessible youth record; this includes individuals over age 18.
(67) John Howard Society of Ontario, "Help Wanted*: Reducing Barriers for Ontario's Youth with Police Records" (2014) at 20, online: <http://johnhoward.on.ca/wp-content/uploads/2014/07/johnhoward-ontario-help-wanted.pdf> ["Help Wanted").
(68) Rebecca Oyama, "Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act" (2009) 15:1 Mich I Race & L 181 at 187.
(69) Nicole Ireland, "Pardons System's Harsher Rules Block Ex-Criminals from Jobs, Housing", CBC News (24 January 2016), online: <http://www.cbc.ca/news/canada/criminal-justice-pardons-impact-1.3416380>.
(70) St Stephen's Community House & Access Alliance, "Tired of the Hustle: Youth Voices on Unemployment" (2016) at 8, online: <http://accessalliance.ca/wp-content/uploads/2017/01/TiredoftheHustleReport.pdf> ["Tired of the Hustle"].
(71) AC v Manitoba (Director of Child & Family Services), 2009 SCC 30 at paras 82-83,  2 SCR 181.
(72) Ibid at para 71.
(73) Supra note 3; R v LTH, 2008 SCC 49 at para 6,  2 SCR 739.
(74) R v I(LR) and T(E),  4 SCR 504 at 522, 109 DLR (4th) 140.
(75) Supra note 3, s 146(1), which reads as follows: "[T]he law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons." This passage codifies the common law confessions rule and applies it to young persons. Accordingly, the Crown must prove that any statement made by a young person to a person in authority was made voluntarily. See R v Oickle, 2000 SCC 38 at para 68,  2 SCR 3. See also Jones, Rhodes & Birdsell, supra note 19 at 28.
(76) Simon Gillies et al v Toronto District School Board, 2015 ONSC 1038, 125 OR (3d) 17 [Gillies].
(77) Rv Wills (1992), 7 OR (3d) 337, 1992 CanLII 2780 (CA).
(78) Gillies, supra note 76 at para 47.
(79) Ibid at para 62.
(80) The importance of a minor receiving independent legal advice is underscored by its materiality under provincial legislation in the family law context. For example, the statutory regimes in Alberta and New Brunswick specifically note the role of independent legal advice in determining the validity of an agreement implicating an adult party's legal rights as they pertain to family assets or other property: see Matrimonial Property Act, RSA 2000, c M-8, s 38, and Marital Property Act, RSNB 2012, c 107, s 43. In addition. Ontario's Family Law Act, RSO 1990, c-F.3, s 56(4)(b) alludes to the importance of independent legal advice by providing that a court may set aside a domestic contract "if a party did not understand the nature or consequences of the domestic contract". It arguably follows that independent legal advice should be treated as a compelling indicator of a waiver's validity in the case of minors, who are generally less informed and more vulnerable than their adult counterparts.
(81) AB v Bragg Communications Inc, 2012 SCC 46 at para 17,  2 SCR 567.
(82) Supra note 3.
(83) Examples of legislation requiring a police record check are generally reserved for specific occupations: see e.g. Retirement Homes Act, 2010, SO 2010, c 11, s 64(2): Long Term Care Homes Act, 2007, SO 2007, c 8, s 75(2).
(84) Police Records Check Coalition. "On the Record: Police Record Checks-Recognizing Impacts, Establishing Best Practices" (Presentation delivered at the Psychosocial Rehabilitation Conference, Vancouver, 24 September 2015) [unpublished]. See Occupational Health and Safety Act, RSO 1990, c O.1.
(85) M(R) v R et al, 2011 ONCI 143 at para 64, 274 CCC (3d) 272 [M(R)].
(86) It is worth noting that the YCJA, supra note 3, distinguishes between the acts of "disclosure" and "publication." "Publication" is defined in section 2 of the YCJA to mean "the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication or electronic means." "Disclosure" means "the communication of information other than by way of publication." While the YCJA does not confer any special disclosure rights on a young person who has a youth record, section 110(3) confers on a young person the right to self-publication. In essence, this provision permits a young person who is over the age of 18 to publish information that would identify himself or herself as dealt with under the YCJA. In the vast majority of circumstances, communication of a youth record to an unauthorized employer or landlord will fall under the definition of "disclosure" rather than "publication." A further discussion of a young person's publication rights is outside the scope of this paper.
(87) SM v Toronto Police Services Board, 2008 ONCI 579 at 5, 88 Admin LR (4th) 81 [emphasis added].
(88) According to these published guidelines, the two police criminal record check application forms commonly issued by Ontario police agencies (namely, the PCRC Application for (Self) Declaration, and the PCRC Application for Agencies Fingerprinting) require the young person to state their reason for making the request; see Ontario Association of Chiefs of Police & Law Enforcement and Records (Managers) Network, Guideline for Police Record Checks (2014), Appendices D and F, online: <http://www.oacp.on.ca/Userfiles/Files/NewAndEvents/PublicResourceDocuments/GUIDELINES%20FOR%20POLICE%20RECORD%20CHECKS%20%20_%20fune%202014_FINAL.pdf> ["LEARN Guidelines"].
(89) As expanded below, police services would likely argue that disclosure of a youth record directly to the young person requesting the check is lawful, and does not permit a YCJA violation. On their view, it would fall outside the scope of section 4(a) to consider whether police have real or constructive knowledge that the record will be subsequently disclosed to an unlawful third party.
(90) For example, as noted above, according to the Toronto Police Service's website, "[s]ince December 2015, the Toronto Police Service has changed business practises [sic] to ensure the new legislative requirements are met in accordance to Bill 113, Police Record Checks Reform Act": see TPS, "Announcements", supra note 65.
(91) For instance, the Toronto Police Service's website explicitly states that criminal record checks are are typically used for, inter alia, "[e]mployment positions not related to the Vulnerable Sector (retail, trades, banking, etc.)": see TPS, "Record Check", supra note 65.
(92) As noted above, these provisions appear to suggest that youth records shall be included in a criminal record check: PRCRA, supra note 5, s 9, Schedule.
(95) R v Jageshur (2002), 169 CCC (3d) 225 at para 50, 2002 CanLII 45116 (Ont CA).
(94) Baker, supra note 32 at para 53.
(95) The term "youth police records" is used in this paragraph to distinguish youth records that fall under section 115 (police records) from the youth records that fall under section 114 (youth court records) and section 116 (government records) of the YCJA. Record keepers' disclosure obligations may differ depending on the type of youth record in question. To reiterate, this paper is principally concerned with youth records that fall under section 115 of the YCJA. See YCJA, supra note 3, ss 114-116.
(96) R v LJC, 2009 NLCA 55 at para 14, 290 Nfld & PEIR 125.
(97) R v Mosa, 2016 ABQB 336 at para 30,  AJ No 620.
(98) YCJA, supra note 3, s 124.
(99) As stated by Murray J in the context of exercising judicial discretion to grant access to a youth record regarding extrajudicial measures, "I consider the use of the term 'may' [in s. 124] with the language of s. 119(1)(a), which provides that a young person shall have access to youth court records and may have access to police and other government records. I conclude that s. 124 gives a court discretion to allow a young person access to the record." M(R), supra note 85 at para 46.
(100) R v N(TD), 2013 NSPC 15 at para 2,  NSI No 107 [emphasis added].
(101) RC, supra note 35 at para 41.
(102) Supra note 3, ss 3(b)(i) and (iii).
(103) LSJPA-0940, 2009 QCCQ 7203 at paras 50, 66  QJ No 8206.
(104) Two preliminary notes are in order. First, many of the statistics referred to in this section are reflective of the general population, and not young people specifically. These statistics should therefore be understood to be an imperfect illustration of the effects of criminal record disclosure in the youth criminal justice context. Second, this paper makes reference to American statistics only where there is no complementary Canadian data available.
(105) See e.g. Oyama, supra note 68 at 189 (landlords often misunderstand the value of a criminal record report in predicting future behaviour).
(106) Patricia Harris & Kimberly Keller, "Ex-Offenders Need Not Apply: The Criminal Background Check in Hiring Decisions" (2005) 21:1 J Contemporary Crim lustice 6 at 12.
(107) David S Kirk & Robert J Sampson, "luvenile Arrest and Collateral Educational Damage in the Transition to Adulthood" (2013) 86:1 Sociology Education 36 at 38.
(109) "Help Wanted", supra note 67 at at 5, 6, 23.
(110) Ibid at 41 [emphasis in original].
(111) Douglas Evans & Jeremy Porter, "Criminal History and Landlord Rental Decisions: a New York Quasi-Experimental Study" (2015) 11:1 J Experimental Criminology 21 at 30.
(112) Marianne Quirouette et al, "'Conflict with the Law': Regulation & Homeless Youth Trajectories toward Stability" (2016) 31:3 C1LS 383 at 394.
(113) Devah Pager, "The Mark of a Criminal Record" (2003) 108:3 American 1 of Sociology 937 at 959.
(114) In 2015/2016, Aboriginal youth represented 35% of all admissions to youth correctional services in Canada, despite the fact that Aboriginal youth only account for approximately 7% of the youth population in the jurisdictions studied: Statistics Canada, "Youth Correctional Statistics in Canada, 2015/2016", by Jamil Malakieh, Catalogue No 85-002-X (Ottawa: Statistics Canada, 2017) at 5, online: <https://wwwl50.statcan.gc.ca/nl/en/pub/85-002-x/2017001/article/14702-eng.pdf?st=WGHmtLRT>.
(115) "Help Wanted", supra note 67 at 14.
(116) According to Statistics Canada, the employment rate of Aboriginal youth (ages 15-24) in 2015 was approximately 6% lower than that of non-Aboriginal youth: Statistics Canada, "Aboriginal People Living Off-Reserve and the Labour Market: Estimates from the Labour Force Survey, 2007-2015", by Melissa Moyster, Catalogue No 71-588-X (Ottawa: Statistics Canada, 2017) at 21-22, online: <https://wwwl50.statcan.gc.ca/nl/en/pub/71-588-x/71-588-x2017001-eng.pdf?st=RWtdLaRT>. Aboriginal youth are also widely recognized to be overrepresented in the Canadian homeless population: Caryl Patrick, "Aboriginal Homelessness in Canada: A Literature Review" (2014) Canadian Homelessness Research Network Press Paper No 6 at 32, online: <http://www.homelesshub.ca/sites/default/files/AboriginalLiteratureReview.pdf>.
(117) Deborah Rutman, Carol Hubberstey & April Feduniw, "When Youth Age Out of Care: Where to from There?" (2007) University of Victoria School of Social Work Report at 4, online: <https://www.uvic.ca/hsd/socialwork/assets/docs/research/WhenYouthAge2007.pdf>.
(118) Larry Motiuk & Ben Vuong, "Offender Employment: What the Research Tells Us" (2005) 17:1 Forum Corrections Research 21 at 21.
(119) "Help Wanted", supra note 67 at 24.
(120) Individuals who do not find stable housing are more prone to recidivism than those who do; according to one study, each residence relocation after release from incarceration increased a person's likelihood of re-arrest by 25%: see Oyama, supra note 68 at 183. See also Evans, supra note 111 at 22.
(121) Quirouette, supra note 112 at 393.
(122) "Tired of the Hustle", supra note 70 at 16; Quirouette, supra note 112 at 395.
(123) R v W(T), 2016 NLCA 3 at para 9, 334 CCC (3d) 547.
(124) "False Promises", supra note 4 at 61.
(125) See e.g. Canadian Civil Liberties Association, "Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks" (2012), online: <https://ccla.org/cclanewsite/wp-content/uploads/2015/02/Presumption-of-Guilt.pdf>; "False Promises", supra note 4.
(126) PRCRA, supra note 5, s 10(2).
(127) RSO 1990, c H.19 [OHRC].
(128) Ibid, preamble ("it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law").
(129) Ibid, s 5(1).
(150) Ibid, ss 24(1)(b) and (2).
(131) Ontario Human Rights Commission, "Ontario Human Rights Commission Submission to the Ministry of Community Safety and Correctional Services Regarding Mandating Standards for Police Record Checks" (2015), Ontario Human Rights Commission (website), online: <http://www.ohrc.on.ca/en/ohrc-submission-mcscs-regarding-mandating-standards-police-record-checks#_edn32>
(132) YCJA, supra note 3, at 82(5).
(133) OHRC, supra note 127, s 21(3).
(134) Police record checks are being used by an increasing number of Canadian businesses, not-for-profit organizations, service organizations, and educational institutions: "False Promises", supra note 4 at 11.
(135) Supra note 5, in conjunction with the Schedule.
(136) Ibid, s 2.
(137) Supra note 5.
(138) YCJA, supra note 3, s 2(1).
(139) Chmara v Nguyen (1993), 104 DLR (4th) 244 at 250, 1993 CanLII 3367 (Man CA) [emphasis added].
(140) According to the LEARN Guidelines, police record check application forms require applicants to state their reason for requesting the check: "LEARN Guidelines", supra note 88, Appendices D and F.
(141) An example of this letter could read as follows:
"Section 118(1) of the Youth Criminal justice Act ("the Act") prohibits third parties from accessing records that fall under section 115(1) of the Act, except as authorized or required by the Act. As such, this document does not identify information that falls under section 115(1) of the Act, unless the Act authorizes or requires such access by the identified third-party recipient of this document.
For clarification, this message is a statement of [name of police agency's] policy. This message is included with all criminal record checks and does not confirm that any such records pertaining to the applicant exist."
(142) It is important to note that Ontario's parliamentary debates only contain indirect evidence pertaining to the intended scope of section 4(a); however, this evidence suggests that a broad interpretation of section 4(a) should be favoured. During the lustice for Children and Youth's ("JFCY") submissions to the Standing Committee on Justice Policy, they adopted a broad interpretation of this provision, which they believed to be in accordance with the intent of the drafters. As stated by Executive Director Mary Birdsell: "What we particularly appreciate [about the PRCRA] is that at section 4(a), the bill prohibits the disclosure of [youth] records, in accordance with the [YCJA]."
One Member of Provincial Parliament acknowledged [FCY's comments as follows:
That is interesting that [[FCY is] saying at the present time, there would be a contradiction between both the [YCJA] and the [PRCRA]: that one prevents the disclosure of that information, but then also permits it without having [further amendments] included.
In response, Mary Birdsell stated:
[JFCY] had the privilege of being consulted by the minister's office in terms of preparation for initiating this bill... My understanding from our meetings with them--but I'm left with the bill at this point--was that they did agree with [JFCY's] assessment of what the [YCJA] requires and meant for this bill to be in harmony with the [YCJA]. Our concern is that the way it's drafted may lead to some confusion and a lack of clarity, which is exactly the purpose of the bill: to clarify."
Ontario, Legislative Assembly Standing Committee on Justice Policy, Official Report of Debates (Hansard), 41st Parl, 1st Sess, No JP-11 (5 November 2015) at JP 159 to JP-160 (Ms Mary Birdsell and Mr Randy Hillier). This discussion discloses that the PRCRA's inconsistencies were recognized by members of the provincial legislature; and further, that the JFCY's interpretation of section 4(a) was not refuted. However, the discussion proceeded with little consideration of recourse to address the contradiction, and this section of the bill was passed without further amendment. Ultimately, this limited Hansard evidence appears to favour a broad interpretation of section 4(a), which promotes disclosure practices that are in line with the spirit of the YCJA.
(143) As noted earlier, for the requirements of exceptional disclosure, see PRCRA, supra note 5, s 10(2). In essence, this provision directs that in exceptional circumstances where an individual has a non-conviction record relating to offences that disclose a "pattern of predation" that presents a risk to vulnerable persons, that information may be disclosed on a vulnerable sector check.
(144) In this paragraph, the term "youth record", which is used throughout this paper to refer to youth police records under section 115 of the YCJA, supra note 3, is avoided so as to differentiate between the three types of records captured by sections 114-116 of the YCJA.. ting4., t department records."ate between the three types of records discussed in Sections 114-116 of the YCJA. YCJA, ly: see
(145) Pursuant to section 119(1)(a) of the YCJA, ibid, a young person has a statutory right to access his or her youth court records. Unlike youth police records, the disclosure of youth court records is mandatory, and is not subject to the discretion of the record keeper. Moreover, unlike youth police records, youth court records are not presented in a format as amenable to third party screening purposes; accordingly, youth court records are less likely to be subject to unauthorized subsequent disclosure.
(146) However, as previously noted, in the event that police services continue to include youth records in vulnerable sector checks, unauthorized third parties may still gain access to youth record information on a discretionary basis.
(147) See e.g. John Howard Society of Ontario, "Submission", supra note 6.
(148) Ibid at 3.
(149) "False Promises", supra note 4 at 11.
(150) R v MO, 2017 ONSC 1213 at para 24, 375 CRR (2d) 167.
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|Author:||van Wiltenburg, Chantelle|
|Publication:||University of Toronto Faculty of Law Review|
|Date:||Jan 1, 2018|
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