Information Sharing Protocol Young Persons with Status under the Youth Criminal Justice Act LEARNING SOLICITOR GENERAL
Message from the Ministers The Information Sharing Protocol provides a provincial framework for the exchange of information between youth justice and school officials concerning students who have status under the Youth Criminal Justice Act. In April 2003, the Youth Criminal Justice Act replaced the Young Offenders Act. This protocol has been updated to reflect the new Youth Criminal Justice Act. The provisions of the Young Offenders Act relating to information sharing with schools have been fully incorporated by the Youth Criminal Justice Act. This protocol documents the obligations and procedures for the disclosure, security, storage and destruction of information. We encourage you to use this protocol to develop procedures that will result in better ways to identify and respond to the needs of young persons. Sincerely, Sincerely, Dr. Lyle Oberg Minister of Learning Heather Forsyth Solicitor General
Table of Contents Introduction... 1 Background... 1 Key Provisions Relating to Information Sharing... 2 Purposes... 3 Guiding Principles... 4 Guidelines, Obligations and Procedures... 4 1. Provider and Receiver of Information... 4 (a) Preparation of a Court Report... 5 (b) Compliance with a Youth Court Order... 5 (c) Safety of Staff, Students or Other Persons... 6 (d) Facilitate the Rehabilitation of the Young Person... 8 2. Preparation of a School Report... 8 3. Initial Disclosure and Custodian of Information... 8 4. Subsequent Disclosure of Information... 9 5. Confidentiality of Information... 9 6. Storage of Information... 9 7. Destruction of Information... 10 8. Release of Student Information... 10 9. Student Transfer... 10 10. Ongoing Communication Between Schools and Youth Justice Systems... 10 11. Dispute Resolution Mechanism... 11 12. Conclusion... 11 References... 12 Appendix... 13 Information Sharing Protocol i
Introduction On April 2003, the Youth Criminal Justice Act replaced the Young Offenders Act. In order to promote the long-term protection of the public, the key principles of the Youth Criminal Justice Act state that the youth criminal justice system is intended to: prevent crime by addressing the circumstances underlying the offending behaviour of a young person rehabilitate young persons who commit offences reintegrate them into society ensure that young persons are subject to meaningful consequences for their offences. The Young Offender Information Sharing Protocol between the youth justice system and the education system, originally issued in 1996, has been updated to reflect the changes in the Youth Criminal Justice Act. The Youth Criminal Justice Act has fully incorporated the provisions of the Young Offenders Act and has further expanded on those provisions relating to information sharing with schools. Background In the early to mid-1990s, school professionals and educational associations presented briefs and lobbied the Government of Canada for amendments to the Young Offenders Act. A key concern had been the need for schools to know the identity and/or circumstances of young offenders in order to address school safety and security issues, and to provide a collaborative and coordinated case management approach to the rehabilitation of the young person. On December 1, 1995, Bill C-37, amendments to the Young Offenders Act came into effect. The amendments responded to the needs of schools and school boards for disclosure and greater sharing of information regarding young offenders. In 1996, youth justice and education officials, in consultation with the Alberta School Boards Association, the Alberta Teachers Association and the College of Alberta School Superintendents, developed the Young Offender Information Sharing Protocol. The protocol provided a provincial framework for sharing information on students with young offender status. Information Sharing Protocol 1
Key Provisions Relating to Information Sharing As with the Young Offenders Act, the Youth Criminal Justice Act protects the privacy of young persons by placing strict limits on the publication of the identity of the young persons and the disclosure of records that would reveal that the young persons were participating in proceedings under the Youth Criminal Justice Act. Section 110(4) of the Youth Criminal Justice Act allows a youth justice court judge to issue a court order authorizing the publication of the identity of a young person who has committed, or is alleged to have committed, an indictable offence, when the judge is satisfied that the young person is dangerous to others, and publication of the identity is necessary to assist in apprehending the young person. This order is in effect for five days only. Section 125 of the Youth Criminal Justice Act allows youth workers to disclose information to professionals or other persons engaged in the supervision or care of a young person, including representatives from school boards, schools or any other educational or training institution, if the disclosure of information is necessary: to acquire information for a report required by the Act to ensure compliance with a court order, or with an authorized reintegration leave under section 91 of the Youth Criminal Justice Act to ensure the safety of staff, students or other persons to facilitate the rehabilitation of the young person. Subsequent disclosure of information received for the above purposes is limited under the Act. A breach of the publication or records provisions of the Youth Criminal Justice Act is an offence under Section 138 and is punishable by indictment or summary conviction. Section 127 of the Youth Criminal Justice Act further allows a youth justice court judge to issue a court order permitting disclosure of information specific to individuals if that judge is satisfied that the disclosure is necessary for the following reasons: the young person has been found guilty of an offence involving serious personal injury the young person poses a risk of serious harm to persons, and the disclosure of information is relevant to the avoidance of that risk. Information Sharing Protocol 2
Purposes This document provides a provincial framework for sharing information about students who have status under the Youth Criminal Justice Act. The protocol and guidelines developed by Alberta Learning and Alberta Solicitor General are intended to: guide school boards to update their procedures to align with the Youth Criminal Justice Act describe obligations and procedures for disclosure, security, storage and destruction of information concerning students in the school system who have status under the Youth Criminal Justice Act facilitate the exchange of information that is necessary: to prepare a report required by the Act to provide effective supervision and enforcement of youth court orders to ensure the safety of students, staff or other persons to facilitate the rehabilitation of the young person assist appropriate authorities in the education and justice systems to be aware of their respective responsibilities as outlined in the Youth Criminal Justice Act, and encourage collaborative partnerships at the local level. Information Sharing Protocol 3
Guiding Principles Crime prevention among youth through early identification of issues, prevention and rehabilitation is essential to the long-term protection of society. Protection of society, a primary objective of the criminal law applicable to youth, is best served by rehabilitation and meaningful consequences. Rehabilitation is best achieved by addressing the needs and circumstances of a young offender relevant to the young person s behaviour. Young offenders must also be held accountable through meaningful consequences. A coordinated and cooperative approach by professionals working with youth is critical in identifying and responding to the needs and circumstances of the young person at risk of committing a crime. Ideally, this approach should occur prior to the youth s involvement with the youth justice system. Guidelines, Obligations and Procedures To implement the Youth Criminal Justice Act effectively, ongoing communication among all major partners involved is vital. Alberta Learning and Alberta Solicitor General have developed procedures to facilitate the exchange of necessary information with respect to young persons. To build trust it is most important for all professionals who work with young persons to clarify respective roles, to develop better ways to identify and respond to the needs of the young person, and to examine partnership arrangements. The following are guidelines, obligations and procedures for information sharing between the education and justice systems. 1. Provider and Receiver of Information Youth workers employed or contracted by Alberta Solicitor General (e.g., probation officers, group home staff or any other person engaged in the provision of services to young persons), may provide oral or written information identifying a young person being dealt with under the Youth Criminal Justice Act to a designated school or to school board staff for the following reasons: Information Sharing Protocol 4
(a) Preparation of a Court Report (i) (ii) (iii) Disclosure is necessary for the preparation of a report that is required under the Youth Criminal Justice Act. The information to be disclosed should include: name and age of the young person nature of the report required by the youth court timelines regarding when the information is required specific description of the type of information requested. The most common report for which information will be exchanged is a pre-sentence report, described in Section 40 of the Act. This report usually contains the following information about the young person: age, character and behaviour previous offences family circumstances school attendance and performance history employment record substance abuse history. Staff in schools and school boards are expected to cooperate with youth workers by providing the relevant information needed in the preparation of pre-sentence and other reports. Information that could be provided to the youth worker may include: student attendance student program of courses at school student performance the nature of any incidents giving rise to discipline and the type of discipline imposed the school period to which the information relates. (b) Compliance with a Youth Court Order Disclosure is necessary to ensure compliance by a young person with a youth court order. These orders typically contain conditions for a young person to attend school, obtain or continue employment, or participate in a program for employment or education/training. The information to be provided to the designated school staff regarding disclosure to ensure compliance with a court order may include: the type of order with which the young person is expected to comply (e.g., interim judicial release, probation, deferred custody and supervision, and community or conditional supervision) Information Sharing Protocol 5
the expected expiry date of the order the offence for which the order has been made the particular terms of the order which relate to school attendance or any other education matter the need for special supervision or attention. This information will greatly enhance the ability of schools to assist the young person and provide effective programs as part of the collaborative team effort with youth workers. (c) Safety of Staff, Students or Other Persons Disclosure is necessary to ensure the safety of staff, students or other persons. It is compulsory for the youth worker to disclose information in cases where the young person is under supervision in relation to the following offences: aggravated assault aggravated sexual assault armed robbery or attempted armed robbery arson with disregard for human life assault causing or intended to cause serious injury, disfigurement or mutilation break and enter of a dwelling house or break and enter involving injury or attempted violence conspiracy to traffic or import a dangerous drug; i.e., narcotics criminal negligence or impaired driving causing death or bodily harm or involving a high speed chase or accident involving injury escape custody with violence espionage extortion first, second degree murder and attempted murder hijacking of aircraft and/or piracy of sea vessels illegal possession and/or detonation of explosives which are likely to cause death kidnapping, forcible detention/abduction and/or hostage taking manslaughter offences committed while the perpetrator is armed with a weapon all sex offences (i.e., sexual interference, invitation to sexual touching, incest, crimes involving children) pimping prison breach (no violence) prison breach (violence) all robberies sabotage stalking Information Sharing Protocol 6
trafficking and possession for the purpose of trafficking (dangerous drugs) treason violent terrorist activities. The information to be provided to designated school staff regarding disclosure to ensure the safety of staff, students or other persons may include: the type of sentence, e.g., open custody, probation, deferred custody and supervision, community or conditional supervision the type of offence(s) for which the young person is under supervision prior record of offences indications of violent tendencies or patterns of behaviour identifiable group of persons who could be at risk from the young person the expiry date of young person s status willingness of the young person to avail himself/herself of services and facilities. In keeping with the intent of the Youth Criminal Justice Act to protect the identity of young persons, information revealed by youth workers to designated school staff will be limited to information necessary for the purpose of ensuring the safety of students, staff or other persons as prescribed in the Act. However, difficulties may arise in circumstances where the youth worker discloses information that is deemed necessary, but school staff perceives that additional information or different information is necessary to ensure safety in school. In such circumstances, the youth worker should share information with designated school staff that is necessary to ensure the safety of staff and students. Examples of such information may include: the young person s prior record of offences that might affect safety recommendations for reducing the risk of violence and increasing the level of safety patterns of behaviour that may signal the onset of activity which might affect safety any identifiable individual or group of persons who could be at risk from the young person. If uncertainty for disclosure persists, the youth worker should consult with the Executive Director, Young Offender Branch, Alberta Solicitor General. Information Sharing Protocol 7
(d) Facilitate the Rehabilitation of the Young Person Youth workers may disclose information where it is necessary to facilitate the rehabilitation of the young person. A youth worker will contact a school official to set up an education program for a youth being released to the community from young offender custody or for a youth under supervision in the community, i.e., probation. A youth worker may seek assistance from the school to facilitate a young person s attendance at counselling should appointments be necessary during the school day. This may include excusing the young person from class and ensuring the young person is aware of homework assignments. 2. Preparation of a School Report Although not required under the Youth Criminal Justice Act, schools may from time to time provide information to youth workers in order to assist in the monitoring and rehabilitation of young persons. This disclosure is permitted by the Student Record Regulation provisions. This school report should be prepared for youth workers by a designated school or board staff and may include the following: school attendance record of achievement results of school staff interviews with the young offender indication of remorse toward victim(s) willingness to make amends willingness to undertake counselling changes in behaviour. 3. Initial Disclosure and Custodian of Information The initial disclosure of information shall be made by the youth worker to a designate of the school board such as the superintendent. It is the responsibility of the board to designate an appropriate staff member at the school level such as the principal, who shall be the custodian of all information provided by the youth worker on a young person with young offender status under the Youth Criminal Justice Act. Boards must put procedures in place to ensure that no persons other than those designated or those with a need to know have access to the disclosed information. The procedures should include mechanisms to ensure that when a designated staff member has custody of a young person s information and is transferred or leaves the school or district, an appropriate staff member is designated as a replacement to ensure continuity and the safety of students, staff and other persons. Information Sharing Protocol 8
4. Subsequent Disclosure of Information Under Section 125 of the Youth Criminal Justice Act, the school or school board designate who initially receives the information provided by the youth worker shall not disclose that information to any other person unless disclosure is necessary to prepare a court report, to ensure compliance with a youth justice court order, to ensure the safety of staff, students and other persons, or to facilitate the rehabilitation of the young person. The school or school board designate must exercise discretion regarding subsequent disclosure to any other person. Only school staff that need to know should be informed of a student s young person status. Where a student, a parent/guardian or a professional such as a social worker, requests information for the purposes of further counselling or coordinating services in the best interests of the young person, the request should be referred to the youth worker. 5. Confidentiality of Information All information received by the school or school board staff from a youth worker about a student with status under the Youth Criminal Justice Act must be kept in confidence. There are legal and professional consequences for inappropriate disclosure of information. School boards must develop procedures to ensure that information received is kept confidential. 6. Storage of Information Section 125(7) of the Act provides that disclosed information about a young person with status under the Youth Criminal Justice Act be kept separate from the student s record and from any other record accessible to other staff. It would be appropriate to append to the young person s file a list of persons to whom the information is to be disclosed, and only those whose names appear on the list should have access to the file. It would also be appropriate to keep the record of the young person s status under the Youth Criminal Justice Act at the student s school, with a further copy to be kept, for example, in the superintendent s office. Records should be kept in a locked cabinet and under the control of designated staff, i.e., the principal in the case of records kept at the school, and the superintendent in the case of records stored elsewhere. Information Sharing Protocol 9
7. Destruction of Information Section 125(7) of the Act also requires that disclosed information be destroyed when it is no longer required for the purpose for which it was disclosed. For example, where information was provided to ensure compliance with a probation order with a condition to attend school, the need for that information would cease with the expiry of the order. Similarly, in situations where information was provided to ensure safety, the destruction of the information would occur when it could be demonstrated that there was no longer a concern in relation to safety of staff, students or other persons, or when the young person is no longer a student of the jurisdiction. Schools and school boards must develop and implement procedures to ensure that the disposal and destruction of the information it received is conducted in a secure confidential manner in order to comply with these provisions of the Act. 8. Release of Student Information Section 5(3) of the Student Record Regulation, A.R. 71/99 allows a school board to disclose information contained in a student record to the Department of the Solicitor General for the purposes of administering the Youth Criminal Justice Act or carrying out any program or policy under the Act. 9. Student Transfer Schools and boards must inform youth workers whenever a young person with young person status under the Youth Criminal Justice Act, about whom they have received information, transfers to another school. The school board designate at the school level is responsible for informing the youth worker about a transfer. The youth worker is responsible for advising the designate at the receiving school about the student s young person status under the Youth Criminal Justice Act. This is necessary to prevent delaying the exchange of information between the school and jurisdictions. Once a transfer has taken place, the student s young person information kept at the sending school must be destroyed in a manner that is secure and maintains confidentiality. 10. Ongoing Communication Between Schools and Youth Justice Systems Communication between youth justice personnel, school and school board staff should be encouraged and ongoing. The youth worker should meet regularly with the school or board to advise them of any changes regarding court orders, including the expiration of such orders. Similarly, Information Sharing Protocol 10
designated school staff should advise the youth worker of attendance or other problems which may result in the young person being found in violation of a court order. It is also important for school boards to establish ongoing communication with the local police agency for sharing information on youth charged but who are not under the supervision of Alberta Solicitor General. 11. Dispute Resolution Mechanism In circumstances where there is a difference of opinion between the youth worker and school or school board staff regarding the nature or extent of information to be provided by one party or the other, there must be mechanisms in place to resolve the difficulty by referring the matter immediately to the supervisors of each party, e.g., the superintendent of schools or the Executive Director, Young Offender Branch. If questions arise, the Executive Director of the Young Offender Branch can be contacted at (780) 422 5019. 12. Conclusion The Youth Criminal Justice Act provides for effective information sharing between professionals engaged in the supervision and/or care of young persons in Alberta. This protocol agreement should be used as a framework by school boards, school staff and youth workers to develop partnerships that will result in better ways to identify and respond to the needs of young persons. It is hoped that the protocol will help clarify the respective roles of the school boards, school staff and youth workers in support of coordinated and collaborative approaches to the rehabilitation of young persons. Information Sharing Protocol 11
References Alberta Education and Alberta Justice. Young Offender Information Sharing Protocol. Edmonton, AB: Alberta Education and Alberta Justice, 1996. Alberta Learning. Student Record Regulation, Alberta Regulation 71/99. www.learning.gov.ab.ca/educationguide/polplan/polregs/adobe/5stnrec.pdf or www.gov.ab.ca/qp. Canada Department of Justice. Youth Criminal Justice Act. www.canada.justice.gc.ca/en/dept/pub/jcja/youth (Accessed December 5, 2003). Canadian School Boards Association. The Need to Know: A Guide for Timely and Ongoing Information Sharing Between School Officials and Justice System Personnel with the Youth Criminal Justice Act. Ottawa, ON: Canadian School Boards Association, 2003. Information Sharing Protocol 12
Appendix Section 110 Youth Criminal Justice Act Protection of Privacy of Young Persons 110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) subject to sections 65 (young person not liable to adult sentence) and 75 (youth sentence imposed despite presumptive offence), in a case where the information relates to a young person who has received a youth sentence for an offence set out in paragraph (a) of the definition presumptive offence in subsection 2(1), or an offence set out in paragraph (b) of that definition for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence); and (c) in a case where the publication of information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. (4) A youth justice court judge shall, on the ex parte application of a peace officer, make an order permitting any person to publish information that identifies a young person as having committed or allegedly committed an indictable offence, if the judge is satisfied that (a) there is reason to believe that the young person is a danger to others; and (b) publication of the information is necessary to assist in apprehending the young person. Information Sharing Protocol 13
(5) An order made under subsection (4) ceases to have effect five days after it is made. (6) The youth justice court may, on the application of a young person referred to in subsection (1), make an order permitting the young person to publish information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, if the court is satisfied that the publication would not be contrary to the young person s best interests or the public interest. Section 125 Youth Criminal Justice Act Disclosure of Information in a Record 125. (1) A peace officer may disclose to any person any information in a record kept under section 114 (court records) or 115 (police records) that it is necessary to disclose in the conduct of the investigation of an offence. (2) The Attorney General may, in the course of a proceeding under this Act or any other Act of Parliament, disclose the following information in a record kept under section 114 (court reports) or 115 (police records): (a) to a person who is a co-accused with the young person in respect of the offence for which the record is kept, any information contained in the record; and (b) to an accused in a proceeding, if the record is in respect of a witness in the proceeding, information that identifies the witness as a young person who has been dealt with under this Act. (3) The Attorney General or a peace officer may disclose to the Minister of Justice of Canada information in a record that is kept under section 114 (court records) or 115 (police records) to the extent that it is necessary to deal with a request to or by a foreign state under the Mutual Legal Assistance in Criminal Matters Act, or for the purposes of any extradition matter under the Extradition Act. The Minister of Justice of Canada may disclose the information to the foreign state in respect of which the request was made, or to which the extradition matter relates, as the case may be. (4) A peace officer may disclose to an insurance company information in a record that is kept under section 114 (court records) or 115 (police records) for the purpose of investigating a claim arising out of an offence committed or alleged to have been committed by the young person to whom the record relates. Information Sharing Protocol 14
(5) The provincial director or a youth worker may disclose information contained in a record if the disclosure is necessary for procuring information that relates to the preparation of a report required by this Act. (6) The provincial director, a youth worker, the Attorney General, a peace officer or any other person engaged in the provision of services to young persons may disclose to any professional or other person engaged in the supervision or care of a young person including a representative of any school board or school or any other educational or training institution any information contained in a record kept under sections 114 to 116 if the disclosure is necessary (a) to ensure compliance by the young person with an authorization under section 91 or an order of the youth justice court; (b) to ensure the safety of staff, students or other persons; or (c) to facilitate the rehabilitation of the young person. (7) A person to whom information is disclosed under subsection (6) shall (a) keep the information separate from any other record of the young person to whom the information relates; (b) ensure that no other person has access to the information except if authorized under this Act, or if necessary for the purposes of subsection (6); and (c) destroy their copy of the record when the information is no longer required for the purpose for which it was disclosed. (8) No information may be disclosed under this section after the end of the applicable period set out in subsection 119(2) (period of access to records). Information Sharing Protocol 15