As a general principle, it is prudent for regulators to ask, on application forms, broad questions related to an applicant’s previous conduct. For example, rather than ask applicants to report any relevant criminal findings, regulators frequently ask for information about findings for any offence. In that way, it is the regulator, and not the applicant, who can assess whether a finding is relevant to their suitability to practice.
However, a few exceptions exist where there is a compelling societal value that outweighs the regulator’s interest in evaluating all potentially relevant information. For example, many regulators have narrowed the scope of inquiries made about an applicant’s mental health history because of the invasive and potentially discriminatory impact such questions pose.
The decision in A.B. v. The Law Society of Ontario, 2024 ONCJ 380 (CanLII), identifies another protected area related to youth offences. The applicant answered a question acknowledging that they had been found guilty of murder committed while they were a youth. The regulator sought and obtained access to the youth court records. The applicant later objected to how the records were being used and asked the Court to rescind the regulator’s access to them.
The Court noted that under s. 82 of the Youth Criminal Justice Act, once the sentence is served, “the young person is deemed not to have been found guilty or convicted of the offence”, subject to certain exceptions that did not apply in this case. The Court concluded that “neither the conviction itself nor evidence of the crime to which the conviction relates can be used by the” regulator for assessing the character of the applicant for registration. In fact, the Court found that the question on the regulator’s application form resulting in the disclosure by the applicant was “misleading and unlawful”. The Court ordered that the youth court records be returned.
The Court noted:
It may appear that this decision seriously restricts the Law Society’s ability to vet candidates for membership and authorization to practice law and by so doing exposes the public to potential harm. But this danger should not be over-stated. As mentioned in a footnote above, other organizations, institutions and professions have had no window to access youth records at all much less to use them in their vetting of applicants. As far as I am aware there has been no reported harm or even outcry arising from this restriction.
It is noteworthy that the Court distinguished the provision in the Youth Criminal Justice Act from the adult pardon regime that does not contain such a deeming provision.
The Court acknowledged that the Youth Criminal Justice Act raised some difficult interpretation issues, particularly in respect to another provision that allowed limited access to the records for up to five years. It is not inconceivable that there will be further judicial rulings on this point in the future. However, in the meantime, regulators should be cautious about requiring applicants to provide information about findings made under the Youth Criminal Justice Act.