Executive Summary: Key Legal and Evidentiary Issues

• Five major Canadian media organizations challenged the constitutionality of sections 119(1)(s) and 129 of the Youth Criminal Justice Act (YCJA), arguing both provisions unjustifiably restrict media access to and disclosure of youth court records.
   
• Both impugned provisions were found to infringe section 2(b) of the Charter, which protects freedom of expression and freedom of the press.
   
• Applying the Oakes test, the court concluded that section 119(1)(s), which places an onus on media applicants to establish a valid interest before accessing youth court records, is a justified limit under section 1 of the Charter.
   
• Unlike section 119(1)(s), section 129's blanket prohibition on disclosing any information from a youth court record failed the minimal impairment branch of the Oakes analysis.
   
• Evidentiary submissions from a journalist, a law professor, and a forensic psychologist informed the court's weighing of media access interests against youth privacy and rehabilitation concerns.
   
• Justice Schabas ultimately declared section 129 of no force and effect without suspension, while upholding section 119(1)(s) as constitutionally valid.
   

Facts of the case

This application was brought by the Canadian Broadcasting Corporation, CTV News (a division of Bell Media Inc.), The Globe and Mail Inc., Toronto Star Newspapers Limited, and La Presse against the Attorney General of Canada, seeking a declaration that sections 119(1)(s) and 129 of the YCJA are unconstitutional. The dispute traces back to youth court proceedings against eight teenage girls, aged 13 to 16, charged with second degree murder after a man was swarmed and stabbed to death in downtown Toronto on December 18, 2022. During those proceedings, the media encountered significant obstacles: they were not notified when a bail hearing date was moved up, court staff refused to provide information without the young person's full name and date of birth, and access to court records required judicial permission under section 119(1)(s) of the YCJA. The media's earlier application for access to records in that case was heard by a youth court judge (O'Connell J.), whose decision was upheld on review by Akhtar J. and later by the Court of Appeal in Canadian Broadcasting Corporation, 2024 ONCA 765. This application, commenced in December 2024, took the constitutional challenge directly to the Superior Court, since only that court can grant a declaration of invalidity. The applicants relied on the affidavit of journalist Jennifer Pagliaro, who described systemic difficulties covering youth courts, while the Attorney General of Canada relied on affidavits from a law professor, a forensic psychologist, and a court records employee addressing the rationale for protecting youth privacy.

Policy and legislative provisions at issue

The application centred on two provisions within Part 6 of the YCJA, titled "Protection of Privacy of Young Persons." Section 118(1) presumptively bars access to youth court records, subject to exceptions listed in section 119(1). Most of those exceptions, found in paragraphs (a) through (r), grant specified individuals and officials access without judicial discretion. The media, however, falls only under paragraph (s), which permits access to "any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record" if the judge is satisfied that access is "desirable in the public interest for research or statistical purposes" or "desirable in the interest of the proper administration of justice." Separately, section 129 prohibits anyone given access to a youth court record, or to whom information from one is disclosed, from further disclosing that information unless authorized under the Act. The applicants did not challenge sections 110, 111, or 118, which respectively prohibit identifying young persons and establish the general presumption against access. Their argument focused on the absence of a presumptive media exemption comparable to paragraphs (a) through (r), and on the sweeping scope of section 129's disclosure ban.

Reasoning and analysis

Justice Schabas found that both provisions infringe section 2(b) of the Charter. Section 119(1)(s) departs from the Sherman Estate test, which ordinarily places the burden on a party seeking to limit court openness rather than on the party seeking access, and thus limits the media's expressive rights. Section 129 restricts communication of record-derived information altogether, which the court held plainly engages section 2(b) regardless of whether publication is separately restricted. Turning to whether these infringements are justified under section 1, the court applied the Oakes framework. For section 119(1)(s), the court accepted that protecting the privacy, rehabilitation, and reintegration interests of vulnerable young persons is a pressing and substantial objective, rationally connected to a low evidentiary threshold that most media applicants can readily satisfy. The court reasoned that section 119(1)(s) is minimally impairing because courts retain supervisory authority over records while the burden on media to show a valid interest and administration-of-justice rationale is not onerous, and concluded that its salutary effects in protecting youth privacy outweigh the deleterious effects of requiring an application, particularly since informal or oral requests should generally suffice. Section 129 fared differently. Although its objective of protecting youth privacy was accepted as pressing and substantial, the court found the provision fails minimal impairment because it bars disclosure of any record-derived information, including information already revealed in open court, rather than being tailored to protect only identifying details. The court rejected the government's argument that section 129 merely targets a narrow "sliver" of identifying information, noting the section's language is far broader than its statutory predecessor. Consequently, the deleterious effects of section 129 on timely, accurate reporting were found to outweigh its salutary effects, since youth privacy is already substantially protected through sections 110, 111, 118, and 119.

Ruling and overall outcome

The application was granted in part. The court declared section 129 of the YCJA to be of no force and effect under section 52(1) of the Charter, without suspending that declaration, finding that identification protections under sections 110 and 111 remain sufficient to safeguard young persons' privacy in the interim. Section 119(1)(s), by contrast, was upheld as a reasonable and demonstrably justified limit on freedom of expression under section 1 of the Charter, meaning media applicants must continue to establish a valid interest and administration-of-justice rationale before accessing youth court records. The outcome was therefore split between the parties: the media succeeded in having section 129 struck down but did not succeed in having section 119(1)(s) invalidated or in obtaining a presumptive right of media access to youth court records. No monetary damages or costs award was determined in the decision; the reasons state that the parties may arrange a case conference with the judicial assistant should they wish to address costs.