J.R. of P-804
Court File No: 829/94

Ontario Court of Justice
(General Division)
Divisional Court

Carruthers, Rosenberg, Adams JJ.


IN THE MATTER OF the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31

AND IN THE MATTER OF the Young Offenders Act, R.S.C. 1985, c. Y-1, as amended

AND IN THE MATTER OF the Judicial Review Procedure Act, R.S.O. 1990, c. J.1

AND IN THE MATTER OF Order P-804 of John Higgins, Inquiry Officer, dated November 29, 1994


  BETWEEN:
 )
)
The Solicitor General and Minister of Correctional Services

Applicant
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)
)
)
)		 Leah Price and Peter Landmann
for the Applicant
- and -

John Higgins, Inquiry Officer and John Doe

    Respondents

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)
)
)
)
)
)
William Challis and David Goodis
for John Higgins, Inquiry Officer Information and Privacy Commissioner/Ontario
) Heard: June 4, 1996


ROSENBERG J. (orally)

The majority of the records in question are documents covered by the Young Offenders Act. It is accordingly an offence to publish them by section 38.1 of the Young Offenders Act. The Act provides for a number of exemptions allowing publication in some limited respects. Neither the Young Offenders Act or the Lieutenant Governor in Council have exempted the Privacy Commissioner. The Lieutenant Governor in Council can exempt the Privacy Commissioner under section 44.1(h) but has not done so. Since the legislature has not chosen to exempt the Privacy Commissioner it would be, in my view, inappropriate for the court to so exempt the Privacy Commissioner and accordingly the application is allowed.

CARRUTHERS J.
ROSENBERG J.
ADAMS J. - I dissent.

ADAMS J. (orally)

I dissent. In my view, providing the records in question to the Privacy Commissioner at his or her direction would not contravene the federal legislation. The purpose of the Young Offenders Act is to protect the privacy of youthful offenders. The Privacy Commissioner is dedicated to that same objective and in exercising his jurisdiction reasonably requires to inspect the document to ensure it is what the responding party claims it to be. I don't understand the provisions of Y.O.A. to be sufficiently expressed to preclude that procedural usage of the document. Furthermore, I do not read the provision of section 44.1(1)(h) to be a provision designed to authorize this kind of access to the record. The Commissioner is not seeking, in my view, to use the record as intended by a person designated pursuant to the subparagraph (h). For all of these reasons, I would have directed that the records in question be provided to the Commissioner pursuant to his direction.

ADAMS J.