Lawyers for the plaintiff in a youth solitary confinement class action against the province of Ontario are appealing an order that their client produce his young offender records to the Crown.
The Crown maintains the records are necessary for the “fair determination of the certification motion.”
The class action claims $100 million in damages for negligence and breach of fiduciary duty and $25 million in punitive damages. It covers everyone detained or incarcerated at youth detention centres from Jan. 1, 2007 to the present and were placed in secure isolation while under the age of 18. Lawyers for J.K anticipate the proposed class to “number in the thousands.”
J.K. alleges the Crown was “negligent, in breach of fiduciary duties, and has breached the Class Members’ rights under s. 7,9, and 12 of the Canadian Charter of Rights and Freedoms.
On Dec. 22, 2016, Justice Paul Perell of the Ontario Superior Court of Justice ordered J.K. to produce his young offender records to the Crown. Perell ruled that records relating to J.K.’s crimes and incarceration, which took place when he was a minor, are relevant to his motion to certify the matter as a class proceeding.
Perell said that “by commencing this class action and by delivering an affidavit, J.K. has waived his right of privacy while at the same time preserving the rights of privacy of the putative Class Members, who under the Class Proceedings Act, 1992, are protected from discovery without leave of the court.
“To be a representative plaintiff is to be a champion for the class and I anticipate that J.K. will be prepared to be a champion and make the necessary disclosure of relevant documents,” Perell said in his decision, noting “appropriate orders” can be made to seal the court file and that J.K. would be protected by the deemed undertaking rule.
The order asks for J.K.’s records for before, during and after his incarceration in a number of youth justice facilities in Ontario. The documents include behaviour reports, youth management plans, serious occurrence reports, secure isolation release plans, secure isolation observation placement review, secure isolation observation logs, and other correspondence.
Before the age of 18, J.K. was convicted of several criminal offences, and incarcerated at three different youth centres. He was placed in secure isolation several times in two of the locations, the first time when he was 15 years old. At one, he said the placements lasted up to 12 hours each time in a “small soiled room with no bathroom, bed, chair or mat.”
The Crown had also requested a full criminal history file from the Canadian Police Information Centre, however Justice Perell refused to order the production of that file.
J.K.’s lawyers, Koskie Minsky LLP and Sutts Strosberg LLP, are appealing Perell’s decision and have brought a motion to stay the order pending the appeal.
“Everything Justice Perell ordered to be produced is protected by the Youth Criminal Justice Act,” says James Sayce, an associate from Koskie Minsky.
“We think there are serious grounds for appeal and that the Court of Appeal will take issue with some of Justice Perell’s reasoning and what’s in the order,” he says. “We think Justice Perell has made some errors.”
“The acts, the occurrences, events that take place while you are incarcerated or while being rehabilitated are not to be published to the public or to individual litigants in litigation,” says Sayce.
Criminal lawyer Daniel Brown points to R. v. Sheik-Qasim that covers the rationale for protecting such records.
Brown says while there are a number of scenarios where someone could gain access to YCJA records, none in s. 119 of the Act would apply to defending a civil lawsuit.
“It’s surprising that this judge would order that the young person needs to disclose his records in order to advance a civil action. It would appear to run contrary to the principles of the Youth Criminal Justice Act and the purpose behind sealing those records in the first place,” he says.
The Crown argues that the Youth Records are relevant to the certification motion with respect to whether J.K. was in secure isolation, the particulars of the institution and time spent in isolation and whether he is an “appropriate representative plaintiff” as well as to test his “credibility on the matters about which he deposed in his affidavit.”
As it stands, J.K. has been ordered to obtain the files and produce them to the Civil Law office Crown.
Sayce says the relevance of ordering the records to be produced is at issue as a certification motion is not about the merits of the claim but asks, “Can it work as a class action?”
In his decision, Perell acknowledged that “a judge, managing a class action is not a judge of the Youth Justice Court” and that he doesn’t have jurisdiction to make an order under the Youth Criminal Justice Act to grant access to records. However, he decided that:
“…it is patently obvious to me that the requested Youth Records are relevant to the certification criterion, most particularly to the common issues and preferable procedure criteria.
“The proposed common issues for the class actions concern the details of the circumstances and duration of placement in secure isolation.”
Sayce says the case is about a “systemic problem”, not about one individual’s experience.
The Office of the Provincial Advocate for Children and Youth released a report in 2015 entitled It’s a Matter of Time, which provides details on the use of solitary confinement on children in Ontario.
The report takes issue with the use of solitary confinement in Ontario’s youth justice facilities and advocates for greater safeguards and/or the complete eradication of the use of solitary confinement on children in Ontario.