Winnipeg Child and Family Services v. K.L.W.

Winnipeg Child and Family Services v. K.L.W.
Collection
Supreme Court Judgments
Date
2000-10-13
Neutral citation
2000 SCC 48
Report
[2000] 2 SCR 519
Case number
26779
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Manitoba
Subjects
Constitutional law
Family law
Notes
SCC Case Information: 26779
Decision Content
Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519
K.L.W. Appellant
v.
Winnipeg Child and Family Services Respondent
and
The Attorney General of Quebec, the Attorney General
of Manitoba and the Attorney General of British Columbia Interveners
Indexed as: Winnipeg Child and Family Services v. K.L.W.
Neutral citation: 2000 SCC 48.
File No.: 26779.
2000: February 25; 2000: October 13.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for manitoba
Constitutional law — Charter of Rights — Security of person — Fundamental justice — Child protection — Apprehension of child — Provincial legislation providing state with power to apprehend child without prior judicial authorization in “non‑emergency” situations based on reasonable and probable grounds that child in need of protection — Whether apprehension of child infringing parental right to security of person — If so, whether infringement contrary to principles of fundamental justice — Whether prior judicial authorization of apprehension in “non‑emergency” situations needed to comply with principles of fundamental justice — Whether fair and prompt post‑apprehension hearing needed to comply with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Child and Family Services Act, S.M. 1985‑86, c. 8, s. 21(1).
Constitutional law — Charter of Rights — Fundamental justice — Child protection — Apprehension of child — Post‑apprehension hearing — Six‑month delay between apprehension of child and child protection hearing — Whether delay in post‑apprehension child protection hearing infringing parental rights under s. 7 of Canadian Charter of Rights and Freedoms .
Family law — Child protection — Apprehension of child — Provincial legislation providing state with power to apprehend child without prior judicial authorization in “non‑emergency” situations based on reasonable and probable grounds that child in need of protection — Whether apprehension of child without prior authorization in non‑emergency situations constitutional — Canadian Charter of Rights and Freedoms, s. 7 — Child and Family Services Act, S.M. 1985‑86, c. 8, s. 21(1).
The appellant is the mother of five children. In 1993, she signed a Voluntary Placement Agreement to place her two oldest children into the care of the respondent agency. The children were later returned to the appellant but were subsequently apprehended by the agency on several occasions from 1994 to 1996 on the basis that the appellant was intoxicated, neglecting her children or in contact with former abusive partners. In February 1996, the agency started proceedings seeking an order for the permanent guardianship of the two children. In July 1996, the appellant informed the agency that she was expecting a third child and approximately two weeks before the expected birth date, she agreed to enter a residential facility designed to assist pregnant women. Before the appellant could enter the residential facility, she gave birth to her third child in hospital. Pursuant to s. 21(1) of the Manitoba Child and Family Services Act, the agency apprehended the appellant’s one‑day‑old child.
The appellant immediately sought an injunction to restrain the agency from apprehending the child and a declaration that Part III of the Act is unconstitutional. The appellant claimed that the warrantless apprehension of her child in a non‑emergency situation infringed her rights under s. 7 of the Canadian Charter of Rights and Freedoms in a manner that was not in accordance with the principles of fundamental justice. She also claimed damages under s. 24(1) of the Charter . A motion for interim relief was brought before the Court of Queen’s Bench but was adjourned to allow the agency an opportunity to respond. The appellant unsuccessfully sought a mandatory injunction requiring the agency to return the child to her. At her request, the lawsuit was consolidated with the child protection proceedings initiated by the agency with respect to her first two children. The agency then served the appellant with a petition and notice of hearing to determine whether the infant child was in need of protection. After a number of adjournments and pre‑trial conferences, the child protection hearing was held approximately six months after the child’s apprehension. The trial judge dismissed the constitutional challenge under s. 7 of the Charter and ordered that the agency be appointed permanent guardian of all three children. The Manitoba Court of Appeal upheld the trial judge’s decision. The issue in this appeal is whether the principles of fundamental justice applicable in the child protection context require prior judicial authorization of apprehensions in “non‑emergency” situations.
Held (McLachlin C.J. and Arbour J. dissenting): The appeal should be dismissed.
Per L’Heureux‑Dubé, Gonthier, Major, Bastarache and Binnie JJ.: The s. 7 analysis is a contextual one and, while parents’ and children’s rights and responsibilities must be balanced together with children’s right to life and health and the state’s responsibility to protect children, the underlying philosophy and policy of the legislation must be kept in mind when interpreting it and determining its constitutional validity.
Since s. 21(1) of The Child and Family Services Act provides for the apprehension of a child from parental care, it contemplates an infringement of the right to security of the person which can only be carried out in accordance with the principles of fundamental justice. In determining what the principles of fundamental justice require with respect to the threshold for apprehension without prior judicial authorization, it is necessary to balance the following factors: (1) the seriousness of the interests at stake; (2) the difficulties associated with distinguishing emergency from non‑emergency child protection situations; and (3) an assessment of the risks to children associated with adopting an “emergency” threshold, as opposed to the benefits of prior judicial authorization.
The interests at stake in cases of apprehension are of the highest order, given the impact that state action involving the separation of parents and children may have on all of their lives. From the child’s perspective, state action in the form of apprehension seeks to ensure the protection, and indeed the very survival, of another interest of fundamental importance: the child’s life and health. Given that children are highly vulnerable members of our society, and given society’s interest in protecting them from harm, fair process in the child protection context must reflect the fact that children’s lives and health may need to be given priority where the protection of these interests diverges from the protection of parents’ rights to freedom from state intervention. The interests at stake in the child protection context dictate a somewhat different balancing analysis from that undertaken with respect to the accused’s s. 7 and s. 8 Charter rights in the criminal context. Moreover, the state’s protective purpose in apprehending a child is clearly distinguishable from the state’s punitive purpose in the criminal context. These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context.
In determining the appropriate threshold for apprehension without prior judicial authorization, a number of factors specific to the child protection context must be considered, including the evidentiary difficulties and time pressures associated with child protection situations. The state must be able to take preventive action to protect children and should not always be required to wait until a child has been seriously harmed before being able to intervene. Requiring prior judicial authorization in “non‑emergency” situations, assuming that they can be distinguished from “emergency” situations may impede pro‑active intervention by placing the burden on the state to justify intervention in situations of arguably “non‑imminent”, yet serious, danger to the child. These factors point to serious harm, or risk of serious harm as an appropriate threshold for apprehension without prior judicial authorization. Adopting an “emergency” threshold as the constitutional minimum for apprehension without prior judicial authorization would risk allowing significant danger to children’s lives and health.
The inappropriateness of an “emergency” threshold for apprehension without prior judicial authorization is further supported by an assessment of the risks to children associated with adopting an “emergency” threshold, as opposed to the benefits of prior judicial authorization. If court supervision occurs post‑apprehension, the risk of a wrongful infringement of rights lies with both parents and children. In contrast, if a prior judicial authorization of apprehension is required in so-called “non‑emergency” situations, the risk inherent in the process of obtaining such authorization would fall primarily on the child, who should never be placed in such jeopardy. A wrongful apprehension does not give rise to the same risk of serious, and potentially even fatal, harm to a child, as would an inability on the part of the state to intervene promptly when a child is at risk of serious harm. Even in situations of non‑imminent danger, the risks posed to the child’s life and health by the delays associated with a prior hearing, compounded by the evidentiary difficulties, more than outweigh the benefits of a hearing. They render prior notice and a hearing unfeasible with respect to apprehension in the child protection context. Furthermore, while there may be valid policy justifications for requiring ex parte authorization for apprehensions in so-called “non‑emergency” child protection situations, for the purposes of the s. 7 constitutional analysis, the procedural protections against state interference provided by prior ex parte authorization do not enhance the fairness of the apprehension process sufficiently to outweigh the countervailing interests of, and potential risks to, a child who may be in need of the state’s protection.
In sum, the “emergency” threshold is not the appropriate minimum s. 7 threshold for apprehension without prior judicial authorization. Rather, where a statute provides that apprehension may occur without prior judicial authorization in situations of serious harm or risk of serious harm to the child, the statute will not necessarily offend the principles of fundamental justice. Determining whether a specific statute establishes such a minimum threshold will require an examination of the relevant provisions in their legislative context.
While the infringement of a parent’s right to security of the person caused by the interim removal of his or her child through apprehension in situations of harm or risk of serious harm to the child does not require prior judicial authorization, the seriousness of the interests at stake demands that the resulting disruption of the parent‑child relationship be minimized as much as possible by a fair and prompt post‑apprehension hearing. This is the minimum procedural protection mandated by the principles of fundamental justice in the child protection context.
Section 21(1) of The Child and Family Services Act, evaluated in its social and legislative context, is constitutional. When read as a whole, the Act provides for apprehension as a measure of last resort in cases where child protection authorities have reasonable and probable grounds to believe that the child is at risk of serious harm. The Act’s provisions also conform to the requirement for a fair and prompt post-apprehension hearing. Finally, the delays of the post‑apprehension child protection hearing did not violate the appellant’s s. 7 Charter rights. The six‑month delay prior to the hearing to determine whether the child was in need of protection appears, on its face, to be highly unreasonable, particularly in the case of a newborn child. Much of the delay in this case, however, was attributable to the failure of the appellant’s counsel to appear at a case conference. In addition, the appellant’s motion to consolidate proceedings and difficulties in assembling counsel for all interested parties explain a good deal of the delay. In any event, the appellant suffered no prejudice due to the delay in the protection proceedings. Her challenge of the agency’s apprehension by prerogative writ was disposed of within 10 days of the apprehension and resulted in a finding that the child was in need of protection.
Per McLachlin C.J. and Arbour J. (dissenting): The appellant’s security of the person was infringed by the warrantless apprehension of her infant and the apprehension was not carried out in accordance with the principles of fundamental justice. Prior judicial authorization for the non‑emergency apprehension of children in need of protection is constitutionally necessary, in order to protect both parents and children from unreasonable state interference with their security of the person.
The principles of fundamental justice have both a substantive and a procedural component. To satisfy the substantive content of fundamental justice in the child protection context, the apprehension of a child by a state agency requires an evaluation of the best interests of the child, in addition to the apprehending party having reasonable and probable grounds for believing the child is in need of protection. Procedural fairness is also included in the principles of fundamental justice. Both the parent’s interest in raising his or her child free from unwarranted state intrusion and the child’s right to have his or her interests protected must be considered when determining whether or not a warrantless apprehension is consistent with the principles of fundamental justice. However, when they appear to conflict, these interests must be balanced against each other and against the interest of society in the child protection context. While the child’s interest in being protected from harm is of great significance, it is equally important to recognize the child’s interest in remaining with his or her parents and that harm may come to the child from precipitous and misguided state interference. Removing children from their parents’ care may have profoundly detrimental consequences for the child. There is a strong interest in democratic societies to ensure that state actors cannot remove children from their parents’ care without legal grounds to do so.
A prompt, post‑apprehension hearing on its own is not sufficient to make the warrantless, non‑emergency apprehension of a child constitutional under s. 7 of the Charter . Where such fundamental interests as the right to raise one’s own child and the continuity of family relationships are at stake, the principles of fundamental justice require that the person who authorizes the apprehension of the child must make that decision on an impartial basis, which requires that the person who decides to apprehend cannot be in the position of both investigator and adjudicator. The procedural safeguards developed under s. 8 of the Charter for the protection of the individual’s right to be free from unwarranted state intrusion provide useful guidance in determining what constitutes principles of fundamental justice in the child protection context: where state action impinges on the Charter ‑protected rights of individuals, procedural safeguards must be in place to ensure that the state action is well‑founded and assessed by an independent arbiter. Under Part III of The Child and Family Services Act, the director or a representative of the agency, as well as a peace officer, is empowered to act as both investigator of whether a child is in need of protection and adjudicator of whether or not the need for protection has risen to the level where the child must be removed from his or her parent’s care. The conflation of these two roles within the same agency seriously undermines the ability of these investigators to act impartially and, consequently, risks the possibility that the statutory requirement of reasonable and probable grounds will be diluted, possibly to the extent that children may be apprehended on the basis of suspicion.
Before the state can act to apprehend a child in a non‑emergency situation, it must apply to the court for a warrant, and may do so on an ex parte basis if notice is not desirable. An ex parte application to an independent and impartial judicial officer for a warrant authorizing the agency to apprehend the child is an important procedural safeguard in the context of non‑emergency apprehension and would provide some assurance to families experiencing a dramatic disruption to their lives at the hands of the state that this disruption is being conducted in a manner that is procedurally fair and constitutionally sound. An independent judicial scrutiny of the appropriateness of the apprehension will also serve to ensure that child protection agencies act on reasonable and probable grounds that they can articulate, before initiating an apprehension in a non‑emergency situation. Furthermore, an impartial review would ensure that apprehension remains a measure of last resort. In this case, an ex parte application would have been possible without creating an unacceptable risk to the infant. There was ample time for the agency to seek a prior judicial authorization of the apprehension, with no risk to the infant, who during this time was in hospital where he and his mother were under medical supervision.
Finally, it is possible to distinguish between child protection emergencies and non‑emergencies and to provide for measures that would obviate the risks to children associated with obtaining prior judicial authorization in non‑exigent circumstances. While “emergency” may be a standard of some fluidity, courts have interpreted terms such as “substantial risk of harm” with enough consistency to provide guidance to both agencies and families. Many provinces do require prior judicial authorization for the removal of a child from the parent’s care, except in emergency situations.
Section 21(1) of the Act violates s. 7 of the Charter and is not justified under s. 1 of the Charter . Section 21(1) should be modified to replace the words “without a warrant” with the words “with a warrant”. The appellant’s requests for damages and a declaration of invalidity of Part III of the Act are inappropriate.
Cases Cited
By L’Heureux‑Dubé J.
Referred to: Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Morgentaler, [1988] 1 S.C.R. 30; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Mills, [1999] 3 S.C.R. 668; Chiarelli v. Canada (Minister of Employment and Immigration, [1992] 1 S.C.R. 711; R. v. Lyons, [1987] 2 S.C.R. 309; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; King v. Low, [1985] 1 S.C.R. 87; Hepton v. Maat, [1957] S.C.R. 606; T. v. Alberta (Director of Child Welfare) (2000), 188 D.L.R. (4th) 603; C. (J.M.N.) v. Winnipeg Child & Family Services (Central) (1997), 33 R.F.L. (4th) 175; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Wallis v. Spencer, 202 F.3d 1126 (2000); Dietz v. Damas, 932 F.Supp. 431 (1996); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. O’Connor, [1995] 4 S.C.R. 411; Gareau v. British Columbia (Superintendent of Family and Child Services) (1986), 5 B.C.L.R. (2d) 352, aff’d (1989), 38 B.C.L.R. (2d) 215; In re H. (Minors) (Sexual Abuse: Standard of Proof), [1996] A.C. 563; Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; S. (B.) v. British Columbia (Director of Child, Family and Community Service) (1998), 38 R.F.L. (4th) 138; Miller v. City of Philadelphia, 174 F.3d 368 (1999); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; Re Agar, McNeilly v. Agar, [1958] S.C.R. 52; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Harrer, [1995] 3 S.C.R. 562; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Lyons, [1987] 2 S.C.R. 309; Family and Children’s Services of Kings County v. E.D. (1988), 86 N.S.R. (2d) 205; Schachter v. Canada, [1992] 2 S.C.R. 679.
By Arbour J. (dissenting)
New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Lyons, [1987] 2 S.C.R. 309; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; S. (B.) v. British Columbia (Director of Child, Family and Community Service) (1998), 38 R.F.L. (4th) 138; Schachter v. Canada, [1992] 2 S.C.R. 679; Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 24(1) .
Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 40(2), (7).
Child and Family Services Act, S.M. 1985‑86, c. 8, Declaration of Principles, ss. 4, 7, 9, Parts II, III, ss. 2(1) [am. 1992, c. 28, s. 3], 4(1)(d), (e), 17 [am. 1986-87, c. 19, s. 8; rep. & sub. 1989‑90, c. 3, s. 3; am. 1997, c. 47, s. 131], 21(1), (2), (3), 24, 26(3), 27(1), 29(1) [rep. & sub. 1997, c. 48, s. 16], (2), 30 to 37, 45(3) [rep. & sub. 1997, c. 48, s. 23].
Child and Family Services Act, S.S. 1989‑90, c. C‑7.2, s. 17.
Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, ss. 19, 27(1), 30.
Child Welfare Act, S.A. 1984, c. C‑8.1, ss. 2, 17.
Child, Youth and Family Services Act, S.N. 1998, c. C‑12.1, ss. 23(1), (3), 25.
Children’s Act, R.S.Y. 1986, c. 22, s. 119(1), (3), (4).
Children and Family Services Act, S.N.S. 1990, c. 5, ss. 33, 34(1), (3).
Civil Code of Québec, S.Q. 1991, c. 64, Book 1.
Constitution Act, 1982, s. 52 .
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 3(1).
Family and Child Services Act, R.S.P.E.I. 1988, c. F‑2, s. 15(1) [rep. & sub. 1990, c. 14, s. 7].
Family Services Act, S.N.B. 1980, c. F‑2.2, s. 33(1), (2).
Youth Protection Act, R.S.Q., c. P-34.1, ss. 3, 35.3, 45, 46.
Authors Cited
Bala, Nicholas. “An Introduction to Child Protection Problems”. In Nicholas Bala, Joseph P. Hornick and Robin Vogl, eds., Canadian Child Welfare Law: Children, Families and the State. Toronto: Thompson Educational Publishing, 1991, 1.
Bala, Nicholas. “Reforming Ontario’s Child and Family Services Act: Is the Pendulum Swinging Back Too Far?” (1999‑2000), 17 C.F.L.Q. 121.
Barnhorst, Dick, and Bernd Walter. “Child Protection Legislation in Canada”. In Nicholas Bala, Joseph P. Hornick and Robin Vogl, eds., Canadian Child Welfare Law: Children, Families and the State. Toronto: Thompson Educational Publishing, 1991, 17.
Bernstein, Marvin M., Lynn M. Kirwin and Helen Bernstein. Child Protection Law in Canada. Toronto: Carswell, 1990 (loose‑leaf updated 2000, release 1).
British Columbia. Ministry of Social Services. Gove Inquiry into Child Protection. Report of the Gove Inquiry into Child Protection in British Columbia. Vancouver: The Inquiry, 1995.
Canada. Law Commission. Restoring Dignity: Responding to Child Abuse in Canadian Institutions. Ottawa: Law Commission of Canada, 2000.
Canada. Statistics Canada. Family Violence in Canada: A Statistical Profile 2000. Ottawa: Canadian Centre for Justice Statistics, 2000.
Fodden, Simon R. Family Law. Toronto: Irwin Law, 1999.
Fortin, Jane. Children’s Rights and the Developing Law. London: Butterworths, 1998.
Hogg, Peter W. Constitutional Law of Canada, vol. 2. Scarborough, Ont.: Carswell, 1992 (loose-leaf updated 1999, release 1).
La protection de l’enfant: évolution. Sherbrooke: Éditions Revue de Droit Université de Sherbrooke, 1999.
MacMillan, H. L., et al. “Prevalence of Child Physical and Sexual Abuse in the Community: Results From the Ontario Health Supplement” (1997), 278 JAMA 131.
Manitoba. Family Services. Child and Family Services Act Review Committee. Report of the Child and Family Services Act Review Committee on the Community Consultation Process. Winnipeg: The Ministry, 1997.
Manitoba. Family Services. Third Annual Report of the Children’s Advocate, 1995/96. Winnipeg: The Ministry, 1996.
Ontario Association of Children’s Aid Societies. Ontario Child Mortality Task Force – Final Report. Special edition supplement to the Journal of the Ontario Association of Children’s Aid Societies, July 1997.
Ontario. Panel of Experts on Child Protection. Protecting Vulnerable Children: Report of the Panel of Experts on Child Protection. By Mary Jane Hatton. Toronto: Ministry of Community and Social Services, 1998.
Rycus, Judith S., Ronald C. Hughes and Jewell K. Garrison. Child Protective Services: A Training Curriculum, vol. 1. Washington: Child Welfare League of America, 1989.
Steinhauer, Paul D. The Least Detrimental Alternative: A Systematic Guide to Case Planning and Decision Making for Children in Care. Toronto: University of Toronto Press, 1991.
Vogl, Robin. “Initial Involvement”. In Nicholas Bala, Joseph P. Hornick and Robin Vogl, eds., Canadian Child Welfare Law: Children, Families and the State. Toronto: Thompson Educational Publishing, 1991, 33.
Wissow, L. S. “Current Concepts: Child Abuse and Neglect” (1995), 332 New Eng. J. Med. 1425.
APPEAL from a judgment of the Manitoba Court of Appeal (1998), 126 Man. R. (2d) 315, 167 W.A.C. 315, 41 R.F.L. (4th) 291, [1998] M.J. No. 254 (QL), dismissing an appeal from a decision of Stefanson J. Appeal dismissed, McLachlin C.J. and Arbour J. dissenting.
R. Ian Histed, for the appellant.
Norm Cuddy, Michael Thomson and Myfanwy Bowman, for the respondent.
Dominique Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec.
Shawn Greenberg, for the intervener the Attorney General of Manitoba.
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
The reasons of McLachlin C.J. and Arbour J. were delivered by
Arbour J. (dissenting) —
I. Introduction
1 Section 21(1) of The Child and Family Services Act, S.M. 1985-86, c. 8, provides for the warrantless apprehension of a child by the director, a representative of a Child and Family Services agency, or a peace officer, who has reasonable and probable grounds to believe that a child is in need of protection. The appellant, K.L.W., whose newborn son was apprehended under this provision in hospital, challenges its constitutionality on the grounds that it violates her right not to be deprived of her liberty or security of the person, except in accordance with the principles of fundamental justice, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms .
2 My colleague, Justice L’Heureux-Dubé, has found that the impugned provision does not violate s. 7 . Although the appellant’s s. 7 right to security of the person is infringed by s. 21(1), L’Heureux-Dubé J. concludes that the law accords with the principles of fundamental justice because procedural fairness is satisfied by a prompt, post-apprehension judicial review: see s. 27(1) of the Act. In addition, when balancing the various interests at stake in the child protection context, she places pre-eminent importance on society’s interest in protecting children from harm, due to the difficulty and risk of distinguishing, in her view, between emergency and non-emergency situations in child protection.
3 In contrast to my colleague, I believe that it is possible to distinguish between child protection emergencies and non-emergencies and to provide for measures that would obviate the risks to children associated with obtaining prior judicial authorization in non-exigent circumstances. Furthermore, I differ from L’Heureux-Dubé J. in that I believe this Court’s jurisprudence under s. 8 of the Charter does provide useful guidance for articulating a constitutionally valid procedural standard for non-exigent child apprehension under s. 7 . I do not agree that an ex parte warrant would provide “only a limited enhancement of the fairness of the apprehension process” (para. 113). In my view, prior judicial authorization for the non-emergency apprehension of children in need of protection is constitutionally necessary, in order to protect both parents and children from unreasonable state interference with their security of the person.
II. Analysis
4 The facts, relevant statutory provisions and history of the case in the courts below are set out in the reasons of my colleague. Rather than repeat them here, I will refer to these aspects of the case as needed in the course of my analysis.
A. The Interest Protected
5 It is common ground that the removal of a child from a parent’s custody by the state infringes the parent’s right to security of the person, as protected by s. 7 . In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Lamer C.J. recognized that a parent’s psychological integrity is seriously affected by the state’s decision to remove a child from the parent’s care, at para. 61:
Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as “unfit” when relieved of custody. As an individual’s status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state’s conduct.
The significance of child-rearing to a parent was also recognized by La Forest J. in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 83, who observed that “the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society”. Similarly, Bastarache J. recently affirmed the parental interest in raising a child as a basic and compelling part of individual autonomy and dignity: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at para. 86.
6 Thus, it is certainly consistent with this Court’s previous s. 7 jurisprudence to conclude that the appellant’s security of the person was infringed by the warrantless apprehension of her infant. What remains to be determined is whether the apprehension was carried out in accordance with the principles of fundamental justice.
B. The Principles of Fundamental Justice
(1) The Substantive Content of Fundamental Justice
7 In G. (J.), supra, at para. 70, Lamer C.J. held that the principles of fundamental justice have both a substantive and a procedural component in the child protection context:
The state may only relieve a parent of custody when it is necessary to protect the best interests of the child, provided that there is a fair procedure for making this determination.
While the arguments of all parties on this appeal have focused largely on the procedural content of the principles of fundamental justice, it is interesting to note that s. 2(1) of the Manitoba Act provides that the best interests of the child shall be the paramount consideration in all proceedings under the Act affecting a child, “other than proceedings to determine whether a child is in need of protection” (emphasis added). This would seem to run contrary to this Court’s holding in G. (J.), supra, as well as Art. 3(1) of the UN Convention on the Rights of the Child, Can. T.S. 1992 No. 3, to which Canada is a signatory:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
8 Child welfare legislation in other provinces echoes the UN Convention. For example, Alberta’s Child Welfare Act, S.A. 1984, c. C-8.1, s. 2, requires that any authority or any decision relating to a child in need of protection must be undertaken in the best interests of the child. As well, Quebec’s Youth Protection Act, R.S.Q., c. P-34.1, s. 3, provides that all decisions made under the Act will consider the interests and rights of the child. And in a somewhat contradictory message to parents, the Manitoba Act provides as one of its fundamental principles, that “[d]ecisions to remove or place children should be based on the best interests of the child and not on the basis of the family’s financial status”, in direct contrast to s. 2(1), discussed above.
9 I would suggest, therefore, that to satisfy the substantive content of the principles of fundamental justice in the child protection context, the apprehension of a child by a state agency requires an evaluation of the best interests of the child, in addition to the apprehending party having reasonable and probable grounds for believing the child is in need of protection.
(2) The Procedural Content of Fundamental Justice
10 The principles of fundamental justice also include procedural fairness: Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882, per Iacobucci J.; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, per Wilson J. In Singh, Beetz J. remarked at p. 229, that the “most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned”. Five years later, in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 459, Wilson J. stated that s. 7 “must be interpreted purposively, bearing in mind the interests it was designed to protect”. Similarly, in Pearlman, supra, at p. 884, Iacobucci J. noted that this Court has frequently asserted the need to interpret the principles of fundamental justice within the “specific context in which s. 7 is being asserted”, citing, among others, R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, per La Forest J., and Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682, per L’Heureux-Dubé J.
11 Consequently, we need to consider all the interests affected when determining whether or not the warrantless apprehension provided for in s. 21(1) is consistent with the principles of fundamental justice. The central concerns in the case before us are the parent’s interest in raising his or her child free from unwarranted state intrusion and the child’s right to have his or her best interests protected. However, when they appear to conflict, these interests must be balanced against each other and against the interest of society in the child protection context.
12 In my view, not only should the Court recognize the child’s interest in being protected from harm, but we must also recognize the interest of a child in being nurtured and brought up by his or her parent. While the appellant’s apprehended child was not independently represented on the appeal, nonetheless, arguments relating to a child’s interest in being protected against undue state interference in the parent-child relationship were made in the appellant’s written submissions, at paras. 73-76.
13 My colleague, L’Heureux-Dubé J., has emphasized in her reasons the importance of the child’s interest in being protected from harm (paras. 73-75). Although I, too, acknowledge the great significance of this aspect of the child’s interest, it is equally important to recognize the child’s interest in remaining with his or her parents and that harm may come to the child from precipitous and misguided state interference. Lamer C.J. explicitly recognized the child’s security interest where the parent’s custody of the child is removed by the state in G. (J.), supra, at para. 76:
Few state actions can have a more profound effect on the lives of both parent and child. Not only is the parent’s right to security of the person at stake, the child’s is as well. Since the best interests of the child are presumed to lie with the parent, the child’s psychological integrity and well‑being may be seriously affected by the interference with the parent‑child relationship. [Emphasis added.]
14 If we fail to give sufficient weight to this aspect of the child’s security interest, we may also fail to recognize that removing children from their parents’ care may have profoundly detrimental consequences for the child. Professor Nicholas Bala makes this point in “Reforming Ontario’s Child and Family Services Act: Is the Pendulum Swinging Back Too Far?” (1999-2000), 17 C.F.L.Q. 121, noting that children are not always placed in a foster care environment that is better than the care the child would have received in the home. Further, his comments at pp. 169-71 of the same article speak directly to the concerns I have with the disposition of the current appeal:
In the rush to “increase” protection, I worry that we may lose sight of important concerns about over-intervention that the reforms of the 1970s and 80s were intended to address. Recently a number of Ontario Children’s Aid Societies have responded to the increased awareness of abuse and coroners’ reports by being more aggressive about interpreting the 1984 Child and Family Services Act to emphasize child safety (citing Henry Hess, “Foster care overflows to college dorm” The Globe & Mail (19 June 1998) A1). This has already resulted in substantially more children coming into care in some agencies, straining foster care resources. It also illustrates that agency practices and interpretations play a very large role in how any legislative scheme is actually implemented, and raises questions about whether dramatic legislative reforms are needed.
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We must respond to the inadequacies of the child welfare system, including those in legislation and the court system, hopefully to achieve the best balance possible and not to “overeact”. Unnecessarily intrusive intervention can be harmful to children, disrupting their relationships with primary caregivers, family, friends and schools, and resulting in a series of placements in foster homes and other f