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Privacy of young offenders.

In a technological age where sophisticated satellite spy equipment can capture how many lumps of sugar we put into our coffee while sitting at a restaurant patio, people are nervous about maintaining their privacy. At the same time, people want to be aware of risks to their safety so that they can govern themselves accordingly. Regular folk want to know if a pedophile is being released from custody and whether he will be moving onto their street or if a prospective employee has been convicted of fraud.

Schools face a similar dilemma concerning their students. On the one hand, children are entitled to privacy; on the other hand, school administrators want to know if their students pose a risk to staff and other students. Recently, members of the British Columbia Teachers Federation endorsed a resolution that background checks be conducted on new students before they are permitted to attend school. Such a step can't be taken without appropriate legislation but the resolution is a clear indication that staff and student safety is a concern.

Section 38 of the Young Offenders Act governs the disclosure of information concerning young offenders. Except under limited conditions, the name of a young person either charged or convicted of a criminal offence is not to be divulged. The rationale behind this makes sense -- the Declaration of Principle for the Act (s. 3) stipulates that crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons. While young persons should be held accountable for their actions, the Act recognizes that the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences.

The problem with releasing the names of young offenders on a routine basis is that kids become branded. Rehabilitation is difficult enough to achieve without having everyone pigeonhole the young offender for life. The idea is that kids will be better able to get their act together and become productive members of society if they are not labeled by their communities in their formative years. In N(F) v. R. et al, Justice Binnie writes for the Supreme Court of Canada:

"Stigmatization or premature labeling 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 law-breaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. In the long run, society is best protected by preventing recurrence."

So how do schools -- and society -- balance these competing interests? A number of Canadian jurisdictions have established information-sharing protocols between departments responsible for basic education and the Attorney General. These protocols provide a provincial framework for the exchange of information between youth justice and school officials concerning students who have young offender status. These protocols must conform with the Young Offenders Act which allows information to be shared between school officials and other professional engaged in the supervision or care of a young person where the disclosure of information is necessary:

To procure information for a report required by the Act;

To comply with a court order concerning bail, probation or conditional supervision;

To ensure compliance with conditions imposed on a temporary release; or

To ensure the safety of staff, students or other persons.

This section should not be seen as a green light for the unencumbered exchange of information between justice officials and schools. The Supreme Court of Canada illuminated the circumstances under which the transfer of information would be justified and those under which it would not, in the case of N.(F) v. R. et al. In that case, the youth court staff in St. John's, Newfoundland began to routinely distribute its weekly Youth Court docket to local school boards. The docket is a complete listing of all persons to appear in court to answer to charges or to be sentenced. One of the dockets disclosed the name of the appellant, the fact that he was charged with two counts of assault and breach of probation, and the place and date of trial. The appellant objected and argued that this administrative practice violated the non-disclosure provisions of the Young Offenders Act.

The Supreme Court of Canada allowed the appeal. The court held that the policy was simultaneously over-inclusive and under-inclusive. The practice was over-inclusive in that it provided the names of all persons charged, even in those cases where ensuring compliance with court orders and public safety were not issues. The list included those who posed no safety risk at all. The practice was also under-inclusive because if there is a serious safety concern, it may not include enough information to enable the school to formulate appropriate remedial action.

In short, the lawmakers have attempted to walk the fine line between providing too much and not enough information to school officials. Disclosure should be made on a need-to-know basis so as not to unnecessarily hamper chances at rehabilitation, but to ensure that the young offender is complying with court-ordered conditions or to ensure that students and staff are safe.

Exercises for Classroom Use

Commence the discussion about the topic of privacy by asking students how
they would define privacy. What does it mean to them personally?

Photocopy the list below and distribute to students. Ask them which of the
following personal information they would feel uncomfortable divulging in
documents available to the public:

 1 Don't 2 Uncomfortable 3 Very
 mind uncomfortable
Your name
Your age


Address

Your fingerprints
Blood type
Healthcare number
Personal Health Problems
Psychiatric records
Criminal record
Sexual Orientation
Your marks at school or
 grades on examinations
Your art work
Your photograph
Family information
Opinions of others about
 your behaviour
Adoption records
Clubs to which you belong
Magazines to which you
 subscribe
What books you have
 purchased or borrowed
 in the past year.
What CD's you have
 purchased in the past
 year.
Where you visit on
 the internet
Your political


affiliation

Have students share their list with two or three classmates, and have them discuss the following questions: Are there any items that stand out as common to all? Are there any that are uniquely touchy for one person? How can you explain the differences and similarities? What factors or criteria can you come up with as a group that determines your comfort level with divulging personal information?

As a class come up with the statistics for your class. Have each student indicate their top three concerns on the list. Conduct a poll for each item on the list, having students vote for each of their top three concerns. What five items ranked as most private?

For each of these, ask students under what circumstances it would be important for an organization or government to collect the information. How would these legitimate purposes be impacted by privacy legislation which overzealously guards privacy and does not allow for the collection and use of personal information at all?

Conduct a class discussion around a case study based loosely on the facts in N. (F.) v. R. et al., unreported July 20, 2000, S.C.C. No. 26805.

Facts

Ned is a 15 year old student at a high school. He was charged with two counts of assault and breach of probation. Earlier that year, the Youth Court staff in St. John's began routine distribution of its weekly Youth Court docket to local school boards. The docket includes the names of all youths appearing in court that week and indicates the charges they are facing. The docket of January 4, 2001 disclosed Ned's name, the charges he faced and the date and place of trial. Ned objected to the disclosure of this information to school officials.

* What reasons could Ned have to object to the disclosure of this information to the school officials?

* What reasons could the schools have for wanting this information?

* Do you think it was right for the Youth Court to disclose this information to the school boards? Why or why not?

* Would it make a difference if Ned had already been convicted of the criminal offences?

* Under what circumstances should information relating to young offender charges be disclosed to schools? Under what circumstances should this information be kept confidential? What criteria can you identify which would protect both the interests of the individual and of society?

* Examine section 38 of the Young Offenders Act. How do your criteria correspond to the criteria set out in this legislation?
COPYRIGHT 2001 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Dalton, Danielle; Howe, Bill
Publication:LawNow
Date:Jun 1, 2001
Words:1424
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