Law Times

Law Times • January 16, 2017 Page 5 www.lawtimesnews.com Class action against province on solitary confinement Produce young offender records, says judge BY JENNIFER BROWN Law Times L awyers for the plaintiff in a youth solitary confine- ment class action against the province of Ontario are appealing an order that their client produce his young offend- er records to the Crown. The Crown maintains the re- cords are necessary for the "fair determination of the certifica- tion motion." J.K. v. Her Majesty the Queen in Right of the Province of Ontario involves allegations of Ontario's "over-reliance on the use of solitary confinement on minors in Ontario's youth justice facilities." The class action claims $100 million in damages for negli- gence and breach of fiduciary duty and $25 million in punitive damages. It covers everyone de- tained or incarcerated at youth detention centres from Jan. 1, 2007 to the present and 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 Char- ter of Rights and Freedoms." On Dec. 22, 2016, Justice Paul Perell of the Ontario Supe- rior 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 mo- tion to certify the matter as a class proceeding. Perell said that "by com- mencing 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 with- out leave of the court. "To be a representative plain- tiff is to be a champion for the class and I anticipate that J.K. will be prepared to be a champi- on and make the necessary dis- closure of relevant documents," Perell said in his decision, not- ing "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 in- carceration in a number of youth justice facilities in Ontario. The documents include behaviour re- ports, youth management plans, serious occurrence reports, secure isolation release plans, secure iso- lation observation placement re- view, secure isolation observation logs and other correspondence. Before the age of 18, J.K. was convicted of several criminal of- fences 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 place- ments lasted up to 12 hours each time in a "small soiled room with no bathroom, bed, chair or mat." The Crown had also request- ed a full criminal history file from the Canadian Police Infor- mation Centre; however, Justice Perell refused to order the pro- duction 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 or- dered to be produced is protect- ed by the Youth Criminal Justice Act," says James Sayce, an associ- ate 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 rea- soning 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 re- habilitated are not to be published to the public or to individual liti- gants in litigation," says Sayce. Criminal lawyer Daniel Brown points to R. v. Sheik- Qasim that covers the rationale for protecting such records. Brown says that 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 defend- ing a civil lawsuit. "It's surprising that this judge would order that the young per- son 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 re- cords 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 iso- lation, the particulars of the in- stitution and time spent in isola- tion and whether he is an "appro- priate representative plaintiff " as well as to test his "credibility on the matters about which he de- posed in his affidavit." Sayce says the case is about a "systemic problem," not about one individual's experience. The Office of the Provin- cial 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 facili- ties and advocates for greater safeguards and/or the complete eradication of the use of soli- tary confinement on children in Ontario. 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