I. INTRODUCTION

[1] This is an application by Her Majesty the Queen in Right of Alberta and a Director of Child Welfare for judicial review of the decision of The Honourable Judge K.J. Jordan, Provincial Court, Family and Youth Division, in the matter of Alberta v. K.B. and M.J., [2000] A.J. No. 876 (Prov. Ct.). The Applicants are seeking an Order in the nature of certiorari, quashing the decision of Jordan P.C.J.

[2] The issue before this Court is whether Jordan P.C.J. erred by exceeding her jurisdiction and/or by making an error of law on the face of the record, in striking down the Protection of Children Involved in Prostitution Act, S.A. 1998, c. P-19.3 (the "PCHIP Act" or "Act"), as contrary to sections 7, 8 and 9, and not saved by section 1, of the Canadian Charter of Rights and Freedoms.

II. THE PCHIP ACT

[3] Prior to turning to the substance of this application, it would be useful to set out the scope and content of the legislation which is at issue. The PCHIP Act came into force on February 1, 1999. It has been amended by the Protection of Children Involved in Prostitution Amendment Act, 2000, 4^th Sess., 24^th Leg., Alberta, 2000 (assented to 4 December 2000, not yet proclaimed) ("Amended Act"), recently passed by the fall sitting of the Legislature between the hearing of this judicial review and the release of these Reasons. However, the amendments are not before the Court for consideration, and accordingly these Reasons will be directed to the provisions of the Act only, it being recognized that the existence of the Amended Act may have an impact on these Reasons.

[4] The preamble to the legislation states that children engaged in prostitution are victims of sexual abuse and in need of protection. In my view, there is no doubt about the validity of these premises.

[5] Section 1(1) defines a child as a person under the age of 18 and "director" as a director under the Child Welfare Act, S.A. 1984, c. C - 8.1. Section 1(2) of the Act defines a child engaging in prostitution or attempting to engage in prostitution as a child in need of protection.

[6] Section 2 of the Act sets out the circumstances in which, and procedures whereby, a child in need of protection may be apprehended. Section 2(1) allows a police officer or director to apply ex parte to a judge of the Provincial Court or a justice of the peace for an order allowing the apprehension of a child where there are reasonable and probable grounds to believe that the child is in need of protection. Upon apprehension, the child is to be conveyed to either (a) the child's guardian or a responsible adult who has care and control of the child, or (b) to a "protective safe house." In the latter case, the judge may also order a period of confinement of up to 72 hours to allow for the safety of the child and for a director to assess the child. Subsections 2(2)-(8) govern the making of applications by telephone or other means of telecommunication where it would be impracticable to appear in person before a judge. Section 2(9) allows for the apprehension of a child and conveyance of that child to a protective safe house without an order where a police officer or director has reasonable and probable grounds to believe that a child's life or safety is seriously and imminently endangered because the child is engaging in or attempting to engage in prostitution. Pursuant to section 2(10), if a child is apprehended without an order under section 2(9), a director can confine that child for up to 72 hours if it is necessary to ensure the safety of the child and to assess the child. Section 2(12) states that when a child is confined without an order, the director must appear before the Provincial Court within 3 days to show cause why the confinement was necessary.

[7] Under section 3(1)(b), when a child is (with or without an order) apprehended and conveyed to a protective safe house, the director must:

1. return the child to the custody of the child's guardian or a responsible adult; or
2. release the child, if the child is at least 16 and is capable of providing for his or her own needs and safety; or
3. confine the child pursuant to section 2 in a protective safe house to ensure the safety of the child and to assess the child.

Pursuant to section 3(2), when the decision of a director is to confine a child, and no return or release of the child occurs within 72 hours of confinement, a director must apply to the Provincial Court under section 19 of the Child Welfare Act for a supervision order, a temporary or permanent guardianship order, or an order returning the child to the custody of the child's guardian.

[8] Section 4 requires a director to notify the child's guardian forthwith if the child has been conveyed to a safe house. Sections 5 through 9 set out a director's responsibilities towards an apprehended child, the procedure for applying for a restraining order, the Minister's ability to establish programs, the Minister's regulation making powers and offences under the Act.

III. FACTS AND PROCEDURAL HISTORY

[9] On September 13, 1999, two children, K.B. and M.J., were, without prior court order, apprehended and conveyed to a protective safe house pursuant to section 2(9) of the Act. According to the hearsay evidence of Ms. Patricia Udberg, a Child Welfare worker at the Calgary Crisis Unit, officers of the Calgary Police Service, looking for stolen property, attended at the premises where the girls were found. The premises were dirty and unkempt and had drug paraphernalia, mattresses and condoms strewn around. Apparently convinced that they were at a "trick pad" and concerned for the safety of the girls, the police apprehended both children and conveyed them to a protective safe house.

[10] Ms. Udberg testified that she tried, unsuccessfully, to contact the guardians of both children. She also considered releasing the children, but, deciding that they were at risk and concerned for their safety, authorized their confinement under section 2(10).

[11] Ms. Udberg spoke with both children at the protective safe house on September 14, 1999, within 24 hours of their apprehension, but her discussions did not lead her to change her mind about the initial decision to confine, and accordingly their confinement continued under section 3(1)(b)(iii). As required by section 2(12) of the Act, they were served with a Notice that there would be a show cause hearing on September 15, 1999, for the director to show cause why their confinement was necessary.

[12] At the show cause hearing of September 15^th before Jordan P.C.J., Counsel for the Director advised that the children were releasable as of September 16 th because no additional confinement was sought. Counsel for the Director consented to the immediate release of K.B., and the issue became whether M.J. would be confined to the 16 th. The Director's application for continued confinement of M.J. until the 16^th was denied. Accordingly, both children were released. The show cause aspect of the hearing (as to the reasons for the original confinement) was adjourned to allow time for notice to be given of an application impugning the constitutional validity of the Act. The constitutional argument was heard on November 15, 1999 and continued on April 6, 2000. Jordan P.C.J. ruled on the constitutional issues by written reasons dated July 28, 2000. As she found the Act unconstitutional, she made no ruling on the "show cause" aspects of the matters before her.

IV. DECISION IN THE COURT BELOW

[13] After concluding that the children had standing to challenge the Act, Jordan P.C.J. considered whether the Act was ultra vires the Alberta legislature as being in pith and substance criminal law. Of course, as a head of legislative power, criminal law is within the exclusive legislative jurisdiction of the federal parliament under section 91(27) of the Constitution Act, 1867. She concluded that the Act was valid provincial legislation directed to the health and safety of children, within the legislative competence of Alberta pursuant to sections 92(13) and (16) of the Constitution Act, 1867. There was no challenge by the Respondents before this Court to that aspect of her decision.

[14] Jordan P.C.J. then went on to consider whether the Act violated sections 7, 8, 9, 10(b) and 10(c) of the Canadian Charter of Rights and Freedoms.

[15] As to section 7 of the Charter, the question which Jordan P.C.J. set out to answer was whether the Act was in violation of the Charter because the children who were apprehended and confined pursuant to the legislation were not provided with the opportunity to answer the allegations that were made against them — allegations which resulted in a deprivation of their liberty. A show cause hearing under section 2(12) of the Act is held only when the child is apprehended and confined without prior judicial authorization, as was the case here. In that situation the director must show cause within three days of the confinement.

[16] On the basis of the Supreme Court of Canada's decision in B.(R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, Jordan P.C.J. held that there was a deprivation of "life, liberty and security of the person" within the meaning of section 7 and that this deprivation was not in accordance with the principles of fundamental justice. She stated at paragraph 57:

It is not the lack of notice which offends the principles of fundamental justice. It is the lack of a procedural system which would allow each and every one of the children to appear before a judge, with the assistance of counsel, to participate in an adversarial process where they can challenge the Director's evidence and present their own evidence.

[17] As to section 8 of the Charter, section 2(11) of the Act authorizes warrantless entry, by force if necessary, into a dwelling house for the purposes of searching for a child whose life or safety is seriously and imminently endangered because the child is engaging in or attempting to engage in prostitution. Jordan P.C.J. reviewed the decision of the Supreme Court of Canada in R. v. Feeney, [1997] 2 S.C.R. 13, and concluded that warrantless searches are prima facie unreasonable and in violation of section 8 of the Charter. However, as noted in Feeney, at 48, a warrantless search will not always be unreasonable, depending on the circumstances of the case. To constitute a valid warrantless search, the following criteria must be satisfied:

1. the search must be authorized by law;
2. the law must be reasonable; and
3. the manner in which the search is conducted must be reasonable.

Jordan P.C. J. found that the law met the first two criteria, but failed to meet the third. She acknowledged that determining whether the manner in which the search is conducted can only really take place when a particular search is scrutinized by a court. However, she went on to state at paragraph 80: " This does not mean, however, that an examination of the constitutional validity of the warrantless entry provisions of the Act should take place only during a show cause or habeas corpus application dealing with the detention of a particular individual."

[18] In the result, with respect to the constitutional validity of section 2(11), Jordan P.C.J. opined at paragraph 81:

The Act does not require a show cause hearing every time a child is apprehended and confined. It is silent as to judicial scrutiny of the alleged "reasonable and probable grounds" held by the police officer or the director who enters without a warrant. A review can only occur if the matter arises during a show cause application regarding a child who has been apprehended and confined without judicial order or even more exceptionally, during a habeas corpus application. These reasonable and probable grounds will never be examined if a child is apprehended but not confined, or if the child is apprehended and confined pursuant to Court order but the power to enter by force granted by the judge allows such entry only if the officer or director has reasonable and probable grounds to believe that the child may be located therein.

[19] Section 9 of the Charter guarantees the right to be free from arbitrary detention or imprisonment. Jordan P.C.J. held that legislation that authorizes apprehension and confinement is arbitrary if it provides no protections for the subject against the actions of the state. She compared the provisions of the Act with the judicial interim release provisions of the Criminal Code and found the former wanting. In Jordan P.C.J.'s view, apprehension and confinement under the Act were the same as arrest and detention in the criminal context. She held that the failure of the legislature to provide for a review of the belief of the officer or director who has apprehended a child in each and every case violated section 9. She found that the arbitrariness is a result of the fact that some detentions are reviewed, while others are not.

[20] With respect to section 10 of the Charter, Jordan P.C.J. found that the fact the PCHIP Act itself did not specifically provide for a right to counsel did not violate section 10, and accordingly the legislation was found not to be constitutionally invalid for that reason. The Respondents have not sought judicial review of that finding.

[21] As to section 1 of the Charter, Jordan P.C.J. noted that the Applicants chose not to provide any evidence or make any submissions. However, she went on to engage in a section 1 analysis, ultimately finding that the legislation could not be saved by that section. As to the tests to consider under section 1, Jordan P.C.J. found that the protection of children from sexual abuse was of sufficient importance to override a constitutionally protected right. She also found that apprehension, confinement, assessment and warrantless entry were rationally connected to the objective of the legislation. However, Jordan P.C.J. stated that the lack of procedural safeguards led to the conclusion that the legislation did not impair the rights at issue as little as possible. With respect to the section 7 violation, she stated at paragraph 114:

It is surely obvious that a procedural scheme which provides in all cases for a hearing before a judge so that the children may participate in an adversarial process either to review the apprehension and detention in a hearing akin to a judicial interim release hearing, or to review the entire process in a show cause hearing, will not hamper police officers or the director in their efforts to apprehend and assess child prostitutes, unless, of course, those authorities are presently exceeding their jurisdiction.

[22] In an addendum to her written reasons, Jordan P.C.J. suggested that the legislation would meet the requirements of the Constitution if any child who was apprehended was brought before a judge within 24 hours to review that child's detention.

[23] In the result, Jordan P.C.J. declared that the Act violated sections 7 and 9 of the Charter and that section 2(11) was contrary to section 8 of the Charter, none of the violations being saved by section 1 of the Charter.

V. ISSUES

[24] The issues raised by the Applicants in this judicial review are as follows:

1. Did Jordan P.C.J. err by acting in excess of her jurisdiction by ruling on matters not in issue before her?
2. Did Jordan P.C.J. err in law by holding that the Act violates sections 7, 8 and 9 of the Charter?

VI. STANDARD OF REVIEW

1. Privative Clauses;
2. Expertise;
3. Purpose of the Act as a Whole and the Provision in Particular; and
4. The Nature of the Problem: A Question of Law or Fact.

[26] There is no privative clause in the Act. Nor is there a provision for an appeal from the decision of a Provincial Court judge in a show cause hearing under the Act. ^[1] While this Court has great respect, in a legal sense, for the abilities and dedication of members of the Provincial Court, Family and Youth Division, at least absent specific evidence, that Court would not be judicially recognized as possessing specific expertise in the matters under consideration such as to warrant curial deference on the part of the reviewing court. Nor does the purpose of the Act lead to the conclusion that deference is required.

[27] While all of the above-noted factors favour a correctness standard, it is the nature of the question the Court is being asked to review which is, in this case, determinative of the standard. Bastarache J., at 1010 of Pushpanathan, stated that, if all other factors leave the intention of the legislature ambiguous, "courts should be less deferential of decisions which are pure determinations of law. The justification for this position relates to the question of relative expertise." Further, the courts have consistently held that the standard of review for constitutional matters is that of correctness (see: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at 17; and U.F.C.W. Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, at 1129).

[28] As this case is dealing solely with questions of law on constitutional matters, I find that the appropriate standard of review is correctness.

VII. ERROR IN JURISDICTION

[29] It is the position of the Applicants that Jordan P.C.J. erred in considering sections of the Act which were not "before her", in the sense that they were not necessary for her to consider on the facts of the case. The application before the Provincial Court was a show cause hearing under section 2(12) of the Act. Also of relevance, conceded the Applicants, were sections 2(9), under which the children were apprehended, and 2(10), which allowed the director to authorize their confinement. The Applicants therefore object to Jordan P.C.J.'s consideration of the Act's sections 2(1) through 2(8) (apprehensions and confinement by prior judicial authorization) and section 2(11) (forced entry into a dwelling house where there are reasonable and probable grounds to believe that a child's life or safety is imminently endangered). While Jordan P.C.J. considered the latter section to be in violation of section 8 of the Charter, the Applicants say that the section 8 issue does not arise on the facts because the police were voluntarily given admission to the apartment where the children were found.

[30] The Respondents submit that the jurisdictional argument was not raised in the Court below and therefore cannot be raised for the first time on an application for judicial review. They further contend, citing Re Provincial Court Judges, [1997] 3 S.C.R. 3, at 85-87, that there is a general tendency for the Provincial Court to be recognized as a court of competent jurisdiction for the purposes of sections 24 and 52 of the Charter.

[31] The answer to the Respondents' submission is that the Applicants cannot, in law, consent or acquiesce to the Provincial Court making a decision where that Court does not possess the requisite jurisdiction to so do. A member of this Court recently had the opportunity to consider this issue in Western Irrigation District v. Craddock, [2000] A.J. No. 738 (Q.B. - Lomas J.), at paragraphs 29-30. One of the matters before the Court was whether it would be unfair to permit the Appellants to raise the issue of jurisdiction upon a judicial review when it appeared that the Appellant might have consented to the jurisdiction of the Provincial Court judge at trial. Lomas J. held, at paragraph 9, that the "Appellant was unable, in law, to waive, consent or acquiesce to an enlargement of Judge O'Neil's statutory and constitutionally limited jurisdiction."

[32] Similarly, the Appellate Division of the Supreme Court of Alberta in Hicks v. Kennedy (1957), 20 W.W.R. 517, stated at 519:

The authorities are clear that failure to raise objection will not clothe the court with authority to make an order when the application is not properly before it.

[34] There is no inherent jurisdiction in the Provincial Court to issue general declarations of invalidity. That Court is limited to ruling on the precise legal questions which are properly before it (Shewchuck). For example, in R. v. H. (R.J.) (2000), 186 D.L.R. (4^th) 468, the Alberta Court of Appeal considered the jurisdiction of a Provincial Court judge to order that the government pay for specific treatment programs as a disposition under the Young Offenders Act. At 474, Fruman J.A. stated:

The Provincial Court is a creature of statute and possesses no inherent power. It has long been accepted in Canadian law that the powers and functions of Provincial Court judges are " circumscribed by the provisions of the statute and must be found to have been thereby conferred either expressly or by necessary implication." [Citations omitted.]

[35] Jurisdictional considerations aside, courts should not make significant rulings on the meaning and content of constitutional rights in a factual vacuum (Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at 1099 - 1100; Mackay v. Manitoba, [1989] 2 S.C.R. 357, at 361; R. v. Mills, [1999] 3 S.C.R. 668, at 702-5; and Krieger v. Law Society of Alberta, [2000] A.J. No. 1129 (Alta C.A.), at paragraph 46). The rationale for this proposition was succinctly stated by Cory J., for a unanimous Court, in Mackay, at 361:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues.

[36] Several of the sections upon which Jordan P.C.J. ruled were clearly not raised on the facts of this case. The children were apprehended without an order pursuant to section 2(9) of the Act. Therefore, I find that the procedures for apprehension with prior judicial authorization, namely sections 2(1) to (8), need not, and therefore should not, have been considered by Jordan P.C.J. Section 2(11), which authorizes forced entry into a dwelling house without a warrant in exigent circumstances, also does not arise on the facts. There is no evidence on the record that the police officers who apprehended the children forced their way into the apartment. Indeed, the only evidence (hearsay though it may be) on this point indicates the contrary. Therefore, I find that Jordan P.C.J. exceeded her jurisdiction in considering sections 2(1) to (8), and 2(11).

[37] I find that the following sections of the Act are properly before me on this judicial review: sections 2(9), 2(10), 2(12), as well as section 3 in so far as it relates to apprehension and confinement without order. These sections will be considered in light of sections 7 and 9 of the Charter. None of the parties to this judicial review application have suggested that the sections of the Act which I have found are at issue here violate section 8 of the Charter.

VIII. ERRORS IN LAW

A. SECTION 7

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[39] To determine whether a violation of section 7 has occurred, a two part test is employed. First, the court must satisfy itself that there has been a deprivation of the claimant's life, liberty or security of the person. Where the answer is negative, section 7 is not engaged and the inquiry is ended. If there has been a deprivation of life, liberty or security of the person, the court must go on to decide whether that deprivation has been in accordance with the principles of fundamental justice. It is only where the deprivation of the protected right is contrary to the principles of fundamental justice, that section 7 is infringed (Reference re: Section 94(2) Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486, at 512-513; R. v. Swain, [1991] 1 S.C.R. 933, at 969; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at 584; and Winnipeg Child and Family Services v. K.L.W. 2000 SCC 48, at paragraph 70).

[40] I am satisfied that Jordan P.C.J. was correct in her finding that K.B. and M.J. were deprived of their liberty. They were confined to a safe house and were not able to leave at their own behest. I find, and the Applicants concede, that the children's liberty interests were engaged by this confinement.

[41] I am not satisfied, however, that the procedures employed by sections 2(9), 2(10) and 2(12) of the Act are contrary to the principles of fundamental justice. For the reasons that follow, I find that Jordan P.C.J. was incorrect in her analysis of what the principles of fundamental justice require in a child welfare context.

1. Principles of Interpretation

[42] The context and purpose of the legislation that is at issue before the Court is an important consideration in a Charter analysis. Since the proclamation of the Charter, the Supreme Court of Canada has engaged a contextual analysis of the right or freedom that is at issue in a particular case. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, for example, Dickson J. (as he then was) reminded us, at 344, that "the Charter was not enacted in a vacuum, and must, therefore, …be placed in its proper linguistic, philosophic and historical contexts." As noted in R. v. Lyons, [1987] 2 S.C.R. 309, at 361, what is required to fulfil the purpose and objects of Charter guarantees will vary, in the words of La Forest J., "according to the context in which they are invoked. Thus certain procedural protections might be constitutionally mandated in one context but not another."

[43] A contextual approach is particularly warranted with respect to the interpretation of section 7 of the Charter, which requires a careful balancing of the rights of the individual and the interests of society (R. v. Mills [1999], at 715; and K.L.W., at paragraph 71). I shall return to this concept of balance later in this section 7 analysis, and when I discuss section 1 of the Charter, infra.

2. The Context and Purpose of the PCHIP Act

[44] On May 28, 1996, the Minister of Alberta Family and Social Services (now the Department of Children's Services) announced the establishment of a Provincial Task Force on Juvenile Prostitution. The Task Force entitled its 1997 Report "Children Involved in Prostitution." In preparing its Report, the Task Force reviewed past work done, met with various stakeholders, researched and examined programs in other jurisdictions and made recommendations to the Provincial Minister (Report by the Task Force on Children Involved in Prostitution, January 28, 1997 ("Task Force Report"): Return, at 267-324).

[45] According to the Task Force Report, children under the age of 18 represent 10-12% of the total number of prostitutes. The Task Force Report went on to state that a significant number of children involved in prostitution come from backgrounds of parental abuse, unconventional peers, early sexual experiences, promiscuity and drug and/or alcohol abuse. Other children are not necessarily from such a background but are also " recruited" into prostitution by a pimp. Both girls and boys can be prostitutes although boys tend to begin prostitution at an older age (17 compared to an average age of 15 for girls) and work less often through a pimp (Task Force Report: Return, at 276-277).

[46] Sharon Heron was a member of the Task Force on Children Involved in Prostitution and gave evidence at the show cause hearing. She testified that the PCHIP Act was one of the recommendations of the Task Force. In her evidence Ms. Heron outlined six principles that underlie the Act:

1. Children involved in prostitution are victims of sexual abuse and require support, not punishment;
2. Children involved in prostitution require victim protection services;
3. Children have a right to be safe from sexual abuse and protected from sexual exploitation;
4. Children have a right to physical and emotional safety, security and well-being;
5. The social support network for children has a responsibility to ensure children involved in prostitution are safe and that families and caregivers are active participants in the process; and
6. Children involved in prostitution and their families and caregivers do not require Child Welfare status to receive services (Evidence of Sharon Heron: Return, at 67-68).

[47] The Act appears to reflect these principles in a number of ways. The preamble states that children engaged in prostitution are victims of sexual abuse. It defines a child engaging in or attempting to engage in prostitution as a child in need of protection. The Act is substantially similar in procedural approach to other child protection legislation such as the Child Welfare Act. This approach indicates that the legislation is designed to treat children involved in prostitution as victims rather than as criminals. In this regard, Counsel for the Applicants, relying on: the Badgley Report ("Sexual Offences Against Children," Report of the Committee on Sexual Offence Against Children and Youths (1984), at 961; Hodgson, Games Pimps Play: Pimps, Players and Wives-In-Law (Toronto: Canadian Scholars' Press, 1997), at 103, and 112-113; and Re C.A. (1990) 105 A.R. (Alta. Prov. Ct., Fam. Div.); argued:

[The] trend of working with child welfare agencies to protect children instead of treating children involved in prostitution in the criminal arena, has continued since the mid 1980's. This change in philosophy was a recognition that conventional interventions with prostitutes was having no serious impact on children involved in "the Game." There are no criminal sanctions against prostitutes and the Child Welfare Act had proven ineffectual.

See also: Reference Re Young Offenders Act, [1991] 1 S.C.R. 252, at 267.

[48] The scope and content of the legislation within the Act itself, coupled with the evidence on the record of the background and purpose of the Act, amply demonstrate that the Act is intended as child welfare or protective legislation. The question then becomes: What do the principles of fundamental justice require in this context?

3. The Law

[49] Two leading cases from the Supreme Court of Canada canvass the content of the principles of fundamental justice in a child welfare context: B.(R.) ; and K.L.W.. In B.(R.), the issue, as stated at 360, was:

Does the Child Welfare Act, R.S.O. 1980, c.66, s. 19(1)(b)(ix), together with the powers in ss. 30(1) 2 and 41 and the procedures in ss. 21, 27, 28(1), (10) and (12) deny parents a right to choose medical treatment for their infants contrary to s. 7 of the Canadian Charter of Rights and Freedoms?

[50] Section 27(1) of the Ontario Child Welfare Act allowed for the maximum detention of an apprehended child for up to five days. ^[2] By that time the child must have been returned to his or her guardian, made subject to a voluntary agreement or brought before the court for a child welfare order. The substance of that provision is therefore somewhat similar to the sections of the Act under consideration in the case at bar.

[51] Considering the scheme of Ontario's Child Welfare Act as it relates to apprehension and guardianship proceedings, the Supreme Court of Canada concluded that the Ontario Child Welfare Act accorded with the principles of fundamental justice. Much of the judgment focussed on whether section 7 includes a parent's right to choose medical treatment for their children. A majority of the Court concluded that "liberty" in section 7 does encompass such a right. The case at bar does not focus on parental rights, but the rights of the children themselves, and therefore whether section 7 is engaged is not an issue before this Court. Indeed, as I have noted, the Applicants have conceded, and I have concluded, Jordan P.C.J. was correct in her finding that K.B. and M.J. had been deprived of their liberty.

[52] A majority of the Supreme Court of Canada in B.(R.) found that any deprivation of parental liberty occasioned by the Ontario Child Welfare Act was not contrary to the principles of fundamental justice and therefore not in violation of section 7. At 374, La Forest J. set out the considerations which should inform the determination of the principles of fundamental justice in a child welfare context:

The state's interest in legislating in matters affecting children has a long-standing history… More particularly, the common law has long recognized the power of the state to intervene to protect children whose lives are in jeopardy and to promote their well-being, basing such intervention on its parens patriae jurisdiction. The protection of a child's right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure. [Emphasis added.]

[53] The Court determined that, taken as a whole, the procedure employed in Ontario's Child Welfare Act met the requirements of fairness, as it mandated that the parents must be notified of the hearing in which their rights could be affected and it also provided for an adversarial hearing where both parties could lead evidence, cross-examine witnesses and make argument.

[54] The most recent consideration by the Supreme Court of Canada of what the principles of fundamental justice require in a child welfare context is Winnipeg Child and Family Services v. K.L.W..

[55] As stated at paragraph 88 by L'Heureux-Dubé J., for the majority, the question raised in K.L.W. was whether "the principles of fundamental justice applicable in a child protection context require prior authorization of apprehensions in non-emergency situations?" The Appellant in K.L.W. conceded that an ex post facto review of an apprehension in emergency situations meets with the requirements of the principles of fundamental justice because of the imminent danger to the child's life and health.

[56] In determining what interests are at stake for the purposes of the section 7 analysis, L'Heureux-Dubé J. stated at paragraph 98:

[T]he 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 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, namely that of seeing justice is done with respect to a criminal act. These distinctions should make courts reluctant to import procedural protections developed in the criminal context into the child protection context.

These comments would appear to answer Jordan P.C.J.'s analogous references to the applicability of judicial interim release provisions in the Criminal Code to post-apprehension hearings under the Act.

[57] The majority in K.L.W. found that prior judicial authorization to apprehend a child in non- emergency situations was not necessarily a section 7 requirement. Rather, the standard requires an examination of the statutory provisions in their legislative context (at paragraph 117). The majority held that the deprivation of a parent's liberty interest, where child protection authorities have reasonable and probable grounds to believe that a child is at serious risk of harm, do not contravene the principles of fundamental justice where there is a fair and prompt post-apprehension hearing.

[58] The Manitoba Child and Family Services Act, S.M. 1985-86, c. 8, provided in section 21(1) that a child can be apprehended without a warrant and be taken to a "place of safety where the child may be detained for examination and temporary care." The Child and Family Services Agency then had four ^[3] juridical days to make an application for a hearing to determine whether the child is in need of protection. With some considerable significance to the task before this Court, the majority in K.L.W. declined to set a precise constitutional standard for delays in the child protection context. L'Heureux-Dubé J. opined at paragraph 127:

In my view, the amended provisions achieve a constitutional balance between the need for interim measures to protect a child at risk of serious harm, and the requirement for an expedited post-apprehension hearing process. The four-day period to file an application for a child protection hearing and the seven-day period for the return of the application are not unreasonable as maximum delays, given the notification and preparation that must occur prior to the hearing.

[59] It is important to note that the show cause hearing which is at issue in these proceedings is not precisely the same kind of hearing which was the subject of consideration in B.(R.) and K.L.W. The substance of the hearing at issue in B.(R.) and K.L.W. is similar to the hearing referred to in section 3(2) of the PCHIP Act. Section 3(2) requires a director, if no return or release of the child occurs within three days, to apply to the Provincial Court under section 19 of the Child Welfare Act for a supervision order, a temporary or permanent guardianship order or an order returning the child to the custody of the child's guardian. The show cause hearing contemplated by section 2(12) of the PCHIP Act is an extra procedural step (not present in the Ontario or Manitoba legislation, as pointed out in the Applicants Reply Brief), which is designed to show cause why the child was confined, where there is no pre-authorized court confinement.

4. Position of the Parties

[60] The Applicants say that B.(R.) (and presumably would say the same of the Supreme Court of Canada's decision in K.L.W., which was issued subsequent to the hearing of this application) is binding on this Court because the Supreme Court of Canada held that sections that are substantially similar to the legislation at issue in the case at bar passed constitutional muster. The Respondents submit that B.(R.) (and presumably K.L.W. on the same basis) are not binding because it was the parents' liberty interests that were engaged rather than the liberty interests of the children themselves. Where it is the liberty interests of the child that are at issue, the Respondents say that the principles of fundamental justice require a more immediate review of the apprehension and confinement.

[61] I would note that in K.L.W., at paragraph 92, L'Heureux-Dubé J. found that B.(R.) was not determinative of whether the apprehension of a child, without prior judicial authorization, in a non-emergency, situation complies with the principles of fundamental justice. Here, however, the apprehension was without prior judicial authorization, but in an alleged emergency situation. While K.L.W. would tend to indicate that in emergency situations, such as here, the apprehension complies with the principles of fundamental justice (see paragraph 89), I will, nevertheless, consider whether the procedures at issue before this Court meet with the principles of fundamental justice; that is, whether the apprehension and confinement of a child without prior judicial authorization in emergent circumstances, followed by a show cause hearing within 72 hours, is constitutional.

5. Analysis

(a) Introduction

[62] Jordan P.C.J. looked to all of the situations of apprehension under the Act and determined that the legislation was in violation of section 7. She noted that it is only in the situation where a child is apprehended without prior judicial authorization under section 2(9), that the child has an opportunity to challenge the apprehension under section 2(12). As I have found that Jordan P.C.J. should not have considered those apprehensions which take place with an order pursuant to sections 2(1) through (8) of the Act, the constitutionality of those sections does not arise. I note parenthetically that K.L.W. suggests that apprehensions with prior judicial authorization certainly meet the standards of fundamental justice in a child protection context.

[63] According to Jordan P.C.J., at paragraph 57: "a system which would allow each and every one of the children to appear before a judge, with the assistance of counsel, to participate in an adversarial process where they can challenge the Director's evidence and present their own evidence" would meet the requirements of fair procedure. That is what happened in the case under consideration, although not within the 24 hours as Jordan P.C.J. thought required. Therefore, presumably, subject to the timing issue, the scheme for apprehensions without prior judicial authorization meets with the principles of fundamental justice on Jordan P.C.J.'s own analysis.

[64] However, notwithstanding that conclusion, in the result, Jordan P.C.J. did strike the entirety of section 2, including sections 2(9), (10) and (12). In her analysis of section 1 of the Charter, she held that the lack of a more immediate review of the circumstances of the children's confinement (within 24 hours) constitutes a violation of section 7.

[65] I have some considerable sympathy with Jordan P.C.J.'s position, in that 72 hours is a significant period of time to confine someone, depriving them of their liberty, without a right to have a judicial review of that confinement. One can easily imagine scenarios where a child could be improperly confined for that period of time. The reasons of the minority in K.L.W. address some of these concerns and the need for impartial judicial review. In addition, once the confinement is concluded, there is not much that a court can do to remedy an improper confinement. ^[4] However, notwithstanding my sympathy, I am not prepared to find that the legislation is unconstitutional for the reasons discussed below.

(b) Fundamental Justice in a Child Welfare Context

[66] Does the fact that it is the child's liberty interest which is engaged alter the content of the principles of fundamental justice in a child welfare context?

[67] In both B.(R.) and K.L.W., the Supreme Court of Canada stated that children, especially young children (which K.B. and M.J. are not), are unable to assert their rights to life and health. These rights are to be balanced, in the child protection context, with parental liberty. As stated by La Forest J. in B.(R.), at 373:

Children undeniably benefit from the Charter, most notably in its protection of their rights to life and to the security of their person. As children are unable to assert these, our society presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, state interference in order to balance the rights of parents and children will arise only in exceptional cases. In fact, we must accept that parents can, at times, make decisions contrary to their children's wishes — and rights — as long as they do not exceed the threshold dictated by public policy, in its broad conception.

[68] Where parents, for what ever reasons, do not exercise their rights vis-à-vis their children, or do not exercise them in the best interests of their children, the state has assumed the duty and role to intervene to protect children's welfare through its parens patriae jurisdiction (see B.(R.), at 374-375; and T. v. Alberta (Director of Child Welfare), [2000] A.J. No. 736 (Alta C.A.), at paragraph 14).

[69] In this case, it is the children who are asserting a liberty interest, apart from any right of parental liberty. Clarke J., in C.U. v. McGonigle, [2000] A.J. No. 1067, at paragraph 28, held that "either a parent or by proper extension a mature minor" could assert rights to refuse a blood transfusion in a child welfare context. With respect to a child's right to life and health, if the child (if old enough to do so) or parent does not take responsibility to act in the best interests of the child's life or health, a child's liberty interests must still be balanced against the state's parens patriae jurisdiction to intervene to protect children's welfare. While these are not young children that we are dealing with at bar, they are still children in the eyes of the law. Ultimately, because they are children, their right to liberty must give way to the overriding interest of protecting their general welfare as long as the procedures employed to do so are fair. I am therefore of the view that the principles of fundamental justice, where a child's liberty is affected under the Act, do not differ materially from the principles of fundamental justice found to exist when a parent's liberty interests are at stake.

(c) The Apprehension of a Child without Prior Judicial Authorization

[70] Section 2(9) of the Act is limited to the apprehension of a child without prior judicial authorization where there are reasonable and probable grounds to believe that a child's life or safety is seriously and imminently endangered because the child is engaging in or attempting to engage in prostitution.

[71] The alleged facts ^[5] of this case illustrate why the authorities should have the ability to apprehend a child engaging in prostitution in emergency situations. The hearsay evidence was that the police, who attended at the premises at issue to look for stolen property, found the two children in the dirty apartment, with a mattress on the floor and condoms and drug paraphernalia strewn about. Based on this hearsay evidence, for the children's own safety, they were conveyed to a safe house where they would be protected from engaging in further acts of prostitution and where they could be assessed.

[72] Subject to my conclusions with respect to confinement and the show cause hearing (which follow), I find that an apprehension, without prior judicial authorization, of a child who, on reasonable and probable grounds, is believed to be engaging in an inherently dangerous activity such as prostitution, meets with the principles of fundamental justice.

(d) Confinement and the Show Cause Hearing

[73] The Legislature chose ^[6], under sections 2(10) and 3(2), a period of up to 72 hours that a child can be confined without a judicial review, where a child is engaging in or attempting to engage in prostitution. The words of La Forest J. on the requirements of section 7 in this context are apposite (B.(R.), at 380-381):

Section 7 requires that a deprivation of liberty be in conformity with the principles of fundamental justice, but does not guarantee the most equitable process of all; it dictates a threshold below which state intervention will not be tolerated. Therefore, while the guidelines proposed by the appellants are more stringent than those found in the legislative scheme, the process nonetheless respects the constitutional requirements [Citations omitted.]

See also K.L.W., at paragraph 130.

[74] Thus, while all concerned in this matter could suggest a better procedure than the 72 hour (now 5 day) period prior to judicial review, and the suggestions of Jordan P.C.J. have considerable merit in substance, the question is: does this period violate a constitutional norm? In my view it does not.

[75] The purpose of the legislation is to assist children who are being sexually abused because they are engaging in prostitution. As Jordan P.C.J. stated at paragraph 32: "Confinement of children to protect them from sexual abuse while working as under-age prostitutes falls within the same category as confinement to prevent harm from potentially abusive parents." The state has a legitimate interest in assisting these adolescent children.

[76] According to the Protection of Children Involved in Prostitution Regulations (" Regulations") under the Act (see Alta Reg. 5/99, s.2), and the evidence of Sharon Heron, the 72-hour assessment period is utilized to assess: the child's physical and nutritional health; the child's use of alcohol, drugs and other intoxicating substances; the child's risk of self-harm and of engaging in or attempting to engage in prostitution; and whether the child is in need of protective services under the Child Welfare Act. Indeed, at paragraph 35, Jordan P.C.J. recognized the possibility that the 72 hour period of confinement may be too short in duration, albeit, in her reasons with respect to the vires of the Act:

The Act… is far from perfect. It merely locks children up for a few days so that social workers and child care workers can attempt to gather some information about them, information which will hopefully enable the families, child care and mental health professionals to help these girls avoid or escape this sad, deplorable, dangerous lifestyle. The time frame for such an assessment is short and may be inadequate. Sharon Heron, the Director's witness, was frank that the girls, having been apprehended, spend a long time sleeping. This is presumably a response to the deleterious effects of their lifestyle; having been given the opportunity to sleep, their bodies demand it. These lengthy periods of sleep obviously reduce the amount of time available for any assessment to be carried out.

[77] The Respondents did not impugn the actual procedures employed in the show cause hearing itself; only the timing of the hearing. If the decision is made to confine the child, that confinement must be reviewed by a judge within a maximum of three (now 5) days. That review can occur, as it did in this case, prior to the expiration of the maximum 72-hour period. In addition, the child can be released prior to the expiration of the three day period by the director where he or she returns the child to the custody of the child's guardian or releases the child, if the child is at least 16 and is capable of providing for his or her own needs and safety.

[78] Taken together, and with the purpose of the legislation in mind, I believe that the procedure for the apprehension and confinement of a child without prior judicial authorization, while it could be improved, as the Legislature has attempted to do in the Amended Act, meets with the dictates of section 7.

[79] I believe that this conclusion is consistent with the decisions of the Supreme Court of Canada in B.(R.) and K.L.W., from which I take much guidance. In both of those cases the legislative schemes for apprehending children whose life or health was in danger included the ability to confine those children for a short period of time prior to a hearing taking place to determine the children's guardianship or care (five days under the Ontario legislation at issue in B.(R.) and the four days under the Manitoba legislation in K.L.W.). In those cases, apprehension occurred to protect the children from the decisions or actions/inactions of their parents; in this case, apprehension occurred to protect the children from the decisions or actions/inactions of themselves, or the exploitation of third party parasites.

[80] In the case under consideration, state action was undertaken to protect children from these parasites — pimps and "johns" — who abuse and exploit these children. Children involved in prostitution can be confined for three days in order that the authorities can protect these children and conduct an assessment to determine the best course of action for a particular child. Where a child is apprehended without prior judicial authorization, a show cause hearing must be held to review the reasons why the confinement was necessary. If confinement beyond the three day period set out in the legislation is warranted, a director must make an application under the Child Welfare Act for a supervision order, a temporary or permanent guardianship order, or an order returning the child to the custody of the child's guardian. This scheme meets with the majority's requirement in K.L.W. that an apprehension without prior judicial authorization must be followed with a "fair and prompt" post apprehension hearing.

[81] In accordance with the aforementioned analysis, I find that, on balance, and while they might be improved, subsections 2(9), (10) and (12) meet the threshold such that they accord with the principles of fundamental justice.

B. SECTION 9

[82] Section 9 of the Charter provides that: "Everyone has the right not to be arbitrarily detained or imprisoned."

[83] In Jordan P.C.J.'s view, the failure of the legislature to provide for a review of the belief of the officer or director who has apprehended a child in each and every case violated section 9. It is clear that, in this instance, Jordan P.C.J. was looking to sections beyond those that I have determined are at issue in this case. Therefore, the proper question on this judicial review becomes whether sections 2(9), (10) and (12) are in violation of section 9 of the Charter.

[84] Counsel for the Applicants argued that if I found that the impugned legislation did not violate section 7 of the Charter, then it would not violate section 9. In other words, they argued that a provision cannot be both arbitrary (under section 9) and in accordance with the principles of fundamental justice (under section 7) at the same time. I believe that there is merit to this submission especially when one considers that the Supreme Court of Canada has stated on numerous occasions that sections 8 through 14 are specific manifestations of the principles of fundamental justice (see Reference re: Section 94(2) Motor Vehicle Act (B.C.), supra, at 502). However, Professor Peter W. Hogg, supra, at 46-5 to 46-6, has suggested that different considerations might apply when a court is considering detention or imprisonment in relation to section 7, as opposed to section 9:

A detention or imprisonment that is not preceded by a proper hearing or other procedural safeguards should probably be regarded as a breach of s. 7, rather than s. 9. The concept of fundamental justice in s. 7 looks to the absence of adequate procedural standards for the exercise of a power or duty of detention. To be sure, the concept of fundamental justice in s. 7 is not limited to procedural standards, but, in order to minimize duplication in cases to which s. 9 is also applicable, the substantive/procedural dichotomy is a sensible division of labour. That was the approach of the Supreme Court of Canada in R. v. Swain (1991), where there was a challenge to the provision of the Criminal Code that required the detention of persons acquitted of a criminal charge on the ground of insanity. The majority of the Court held that the absence of a hearing or other procedural safeguards was a breach of s.7, while the absence of substantive standards was a breach of s.9.

[85] I will therefore analyse the impugned sections in light of the substantive section 9 considerations.

[86] In R. v. Hufsky, [1988] 1 S.C.R. 621, the Supreme Court of Canada had to consider whether a random roadside stop of drivers to check for sobriety, mechanical fitness and licences was contrary to section 9. The Court found (at 633) that the detention was arbitrary because:

[T]here were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The selection was in the absolute discretion of the police officer. A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.

[87] R. v. Swain, supra, at 1012, is authority for the proposition that an automatic detention, without any standards for determining whether the individual should be detained, violates section 9 of the Charter.

[88] Reasonable and probable grounds to believe that a person is committing or about to commit an offence is the appropriate standard for arrest without a warrant that has been held to comply with section 9 (R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.)).

[89] Section 2(9) of the Act requires that a police officer or director have reasonable and probable grounds to believe, prior to apprehending a child, that the child's life or safety is seriously and imminently endangered because the child is engaging in or attempting to engage in prostitution. The requirement that a police officer or director have reasonable and probable grounds to believe that a child is in danger are express criteria which must be complied with before a child can be apprehended under the Act. This section does not allow for the unfettered discretion of a police officer or director in deciding if a child will be apprehended.

[90] Section 2(10) allows a director to confine a child without an order for up to 72 hours "if the director considers it necessary in order to ensure the safety of the child and to assess the child." Confinement is not automatic. There are criteria which govern the decision whether there is the necessity of confinement to ensure the safety of the child. For the reasons outlined with respect to section 7, while there may be better provisions, I do not find there to be a constitutional flaw in the 72-hour period chosen by the Alberta Legislature to confine children who are engaging in or attempting to engage in prostitution. I agree with Counsel for the Applicants that, in the context of what the legislation is trying to achieve (the protection of children from a particularly insidious form of sexual abuse), a period of 72 hours confinement before a judicial review occurs is neither arbitrary nor irrational. If a child is confined by virtue of the authority given to a director in subsection 2(10) that confinement must be reviewed by the Provincial Court within three days. Any further confinement must be the subject of a hearing under section 19 of the Child Welfare Act.

[91] I therefore conclude that apprehension and confinement, without prior judicial authorization, pursuant to the PCHIP Act does not constitute arbitrary detention within the meaning of section 9 of the Charter.

C. SECTION 1

[92] As I have concluded that Jordan P. C.J. was incorrect in her reasoning with respect to whether sections 7 or 9 of the Charter were infringed by those sections of the PCHIP Act that were properly before her, it is not necessary to address section 1 of the Charter. However, in the event that my conclusions were to be found in error, I will engage in a review of Jordan P.C.J.'s ruling with respect to section 1 of the Charter.

1. Ability of the Applicants to Raise the Section 1 Justification

[93] As a preliminary matter, the Respondents state that the Applicants made no written or oral submissions in the court below with respect to the section 1 justification. The Respondents submit (based on the case of Re Provincial Court Judges, supra, at 154 — and Reza v. Canada (1992), 11 O.R. (3d) 95 (Ont. C.A.), per Abella J.A. (in dissent), at 76-77) that this should be interpreted as a finding that there is no justification under section 1 for any Charter violations occasioned by the Act. The Respondents also object to the inclusion of some of the Applicants' section 1 material, as some of that material was not before the Provincial Court in the show cause hearing.

[94] The Applicants submit that they cannot be barred from seeking judicial review of Jordan P.C.J.'s rulings with respect to section 1 of the Charter. As the Applicants are seeking judicial review of Jordan P.C.J.'s decision, they say that section 1 is squarely before the Court and can be addressed by all parties. With respect to the inclusion of section 1 material, the Applicants state that there was considerable evidence, both viva voce and documentary, before Jordan P.C.J. about the purpose and intent of the PCHIP Act. Further, even if this evidence were not before the court below, there is no bar to the reviewing court considering the material. The Applicants refer to the distinction between adjudicative and legislative facts. They say that courts have the power to accept legislative facts and will inform themselves about those facts in the absence of evidence: R. v. Danson, supra, at 1099; R. v. Edwards Books, [1986] 2 S.C.R. 713, at 802: R. v. Parker, [2000] O.J. No.2787 (Ont. C.A.), at footnote 1; Mackay v. Manitoba, [1989] 2 S.C.R. 357, at 361-363; Baron v. Canada [1993] 1 S.C.R. 416, at 452; and RJR MacDonald Inc. v. Canada, [1995] 3 S.C.R. 199, at, 286-9.

[95] In my opinion, Re Provincial Court Judges, supra, is not authority for the proposition that failure to make a section 1 argument in the court below is an admission that the legislation cannot be saved by section 1. In that case, neither Alberta nor Prince Edward Island offered any section 1 justification before the Supreme Court of Canada. Chief Justice Lamer, for the majority, stated (at 154) with respect to Prince Edward Island:

The respondent, the Attorney General of P.E.I., has offered no submissions on the absence of an independent, effective, and objective process to determine judicial salaries. For this reason, I conclude that there are inadequate submissions upon which to base a s. 1 analysis. Since the onus of proof is on the Crown to justify the infringement of Charter rights, the violation of s. 11(d) is not justified under s. 1.

Chief Justice Lamer also found that Alberta failed to discharge the onus upon it under section 1 of the Charter because the Attorney General for Alberta had made no submissions.

[96] Failure to discharge an onus is not, in my view, equivalent to a positive admission that the legislation cannot be justified under section 1. In my view, the fact that the Applicants did not make a section 1 argument before Jordan P.C.J. does not constitute an admission in a proceeding by a reviewing court that any violations occasioned by the Act cannot be saved by section 1. However, it is generally the position of the courts that they are reluctant to consider major constitutional issues that did not have the benefit of the consideration of the court below. The reason for this reluctance is that a constitutional issue, like any other issue of law, generally requires an appropriate factual foundation before the courts can adequately deal with the issue (Danson, supra; and Mackay, supra). Often, if a Charter issue is raised for the first time on appeal, the appropriate evidentiary foundation for that issue's consideration has not been laid in the court below (R. v. Hudson (1990), 87 Sask. R. 288 (C.A.)).

[97] I find that these concerns do not prevent a section 1 analysis by a reviewing court. The additional section 1 material relates only to legislative facts. Moreover, its absence would not prevent a review, because there was ample evidence before the Court below which could be considered in the section 1 analysis. Sharon Heron gave viva voce evidence about the purpose and structure of the PCHIP Act. The Task Force Report was entered as an exhibit in the show cause hearing. That Task Force Report has an extensive bibliography which was the source for much of the further materials filed with this Court. The Respondents are not prejudiced in that they had the opportunity to cross-examine Ms. Heron and to file their own materials if they had chosen to do so. In addition, I have the benefit of Jordan P.C.J.'s analysis on the section 1 issue. I therefore find that I can review Jordan P.C.J.'s conclusions with respect to section 1.

2. The Test

[98] The Applicants bear the onus of proving that the impugned legislation is a reasonable limit on a Charter right or freedom which is demonstrably justified in a free and democratic society. The test for demonstrating that a measure is a reasonable limit is well known (R. v. Oakes, [1986] 1 S.C.R. 103). It involves two central criteria. First, there must be a sufficiently important legislative objective to warrant the restriction of a Charter right. Second, the restriction of that right must be proportionate to this objective. The second aspect of the Oakes test — proportionality — has three parts. Dickson C.J.C. summarized the three aspects in Edwards Books, supra, at 768:

The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights.

a. Pressing and Substantial Objective

[99] The Respondents argued that a pressing and substantial need for the Act does not exist because there is other legislation, such as the Child Welfare Act, which could be used just as effectively. I do not see this as the issue under this arm of the section 1 analysis. I accept the Applicants' argument that the question to be answered here is whether the legislature has a reasonable apprehension of harm to a vulnerable group (R. v. Downey, [1992] 2 S.C.R. 10; R. v. Butler [1992] 1 S.C.R. 452, at 493; and R. v. Sharpe (1999) 175 D.L.R. (4^th) 1 (B.C.C.A.), at 65). [100] Jordan P.C.J. described the objective of the Act as the protection of children from sexual abuse and accepted that this is a matter of pressing and substantial concern in a free and democratic society. I agree with this conclusion.

[101] The depiction of the background and lives of these adolescent children paints a bleak picture. As I noted previously in these Reasons, according to the Task Force Report, children under the age of 18 represent 10-12% of the total number of prostitutes. A number of these children turn to prostitution to escape from abusive situations at home. Children involved in prostitution may suffer from drug and alcohol abuse. The Report of the Committee on Sexual Offences Against Children and Youths, at 1044-5, which was cited in the bibliography of the Alberta Task Force, revealed that about one third of children involved in prostitution had a sexually transmitted disease and over two thirds reported they were or had been the victims of physical assault.

[102] The facts of this case amply demonstrate the devastating conditions in which many of these young people find themselves. K.B. and M.J. were allegedly found in a "trick pad" which consisted of a mattress on the floor of an apartment with condoms and drug paraphernalia strewn about. One can only imagine the horrors of being sexually exploited, especially in these conditions.

[103] It seems unlikely that a child would become involved in prostitution on a truly voluntarily basis: Federal/Provincial/Territorial Working Group on Prostitution, Report & Recommendations (December 1998); Hodgson, supra, at 24, 32, 40-41, and 43. Indeed, the literature reveals that generally, children involved in prostitution are seduced or coerced into becoming involved with a pimp (Task Force Report: Return, at 277). The Task Force Report, the evidence of Ms. Heron and the literature all make reference to the role played by the pimp in child prostitution. It is evident to me that one of pressing and substantial needs of the legislation is to attempt to remove (at least temporarily) the child from the vulnerability of "abusive and exploitive malevolence" that a pimp "personifies": Downey, at 36. As Counsel for the Applicant argued "the bond must be broken." Indeed, in Downey, the Supreme Court commented on pimps, at 32-33:

A reading of the reports such as those of the Fraser Committee (Pornography and Prostitution in Canada (1985)) and the Badgley Committee (Sexual Offences Against Children (1984)) emphasises the tragedy and the gravity of the social problem posed by prostitution. As well, they carefully document the cruel, pernicious and exploitive evil of the pimp.… The activities of pimps were described in this way:

It appears that pimps do not run large "stables" of prostitutes but usually control two to six women within a well-defined territory. Pimps, along with customers, are the major source of violence against prostitutes. Women who would talk about their pimps indicated that physical violence, forced acts of sexual degradation and subtle forms of coercion, were used by the pimps to keep them on the streets. In some ways the relationship is most closely analogous to slavery. Prostitutes have no control over their lives, they are subject to constant exploitation and there are accounts of prostitutes being traded to another pimp to pay off debts or for money.
(Fraser Committee, vol. 2, at p. 379.)

The findings of the Committee on Sexual Offences Against Children and Youths (the "Badgley Committee) make particularly sad and disturbing reading. There it was stated that:

Many girls who work on the streets believe that a prostitute who gives evidence against a pimp is almost certain to be murdered, if not by her own pimp, then by his fellow pimps. These murders are purported to be extraordinarily brutal and the prostitutes claim that they are accomplished by severe beatings of head and face. Another palpable fear of female prostitutes which suffices to dissuade many of them form giving information about their pimps is that of being ostracized by the other prostitutes in whose company they work. Furthermore, the Committee's survey indicates that many of the young prostitutes either were "in love" with their pimps, or were psychologically dependent upon them to such an extent that they could not conceive of functioning without them. As a result, many girls adopted a highly protective attitude toward their pimps and were unwilling to divulge information which might have proved damaging to them, or which portrayed them in a negative light.
(Badgley Committee, vol. 2, at pp. 1057-58.) [Emphasis added.]

See also: R. v. Tang (1997), 200 A.R. 70 (C.A.); Hodgson, supra, at 43 - 68, and101-118; Jessome, Somebody's Daughter (Halifax: Nimbus Publishing, 1996), at 7 and 158; MacInnes, children in the game (Calgary: Street Teams, 1998), at 103-123.

[104] The legislation as a whole is premised on the idea that children involved in prostitution are victims of sexual abuse who require support, not punishment (Evidence of Sharon Heron: Return, at 67). Sections 2(9), (10) and (12), which are at issue here, deal with the apprehension and confinement of these children where the child's life or safety is imminently endangered because the child is engaging in or attempting to engage in prostitution. In my view, legislation which attempts to assist children involved in this form of sexual exploitation, particularly in emergent circumstances, addresses a pressing and substantial concern.

b. Restriction Proportionate to Objective

i. Rational Connection

[105] The Applicants submit that the ability of the director to confine a child for three days before the show cause hearing takes place is rationally connected to the legislative objective and is necessary to protect the children by removing them from a harmful and inherently dangerous activity. It is a minimal time, according to the Applicants, for allowing the child to be assessed, and, where applicable, for the child to "come down" from the effects of drugs and alcohol. The Respondents submit that confining children against their will is not rationally connected to protecting those children from sexual abuse as the Act does not require the director to place the child into any specific programs. ^[7]

[106] I agree with Jordan P.C.J. that apprehension, confinement, and assessment are all rationally connected to the objective of protecting children from sexual abuse.

[107] In my view, the emergency apprehension of a child whose life is seriously or imminently endangered because he or she is engaging in or attempting to engage in prostitution is rationally connected with protecting that child from sexual abuse and exploitation.

[108] I also am of the opinion that the ability of a director to confine a child for a period of three days is likewise rationally connected to the objective of protecting children from abuse. The confinement provides for the protection of a child from the activity of prostitution itself and protection from the possible (perhaps, likely) coercion and threats of a pimp (Evidence of Sharon Heron: Return, at 87-88 and 126-126). The three-day period may also be required to conduct a comprehensive assessment of a child, including an assessment of the child's physical and nutritional health, the child's use of drugs or alcohol and whether the child is in need of protective services (see the Regulations, supra). Even if the Court had concerns about the merits of the impugned provisions in relation to the objective, which I don't, it is important to remember that "[r]igid and inflexible standards should not be imposed on legislators attempting to resolve a difficult and intransigent problem": Downey, at 36. I therefore find that the procedures for the emergency apprehension and confinement of a child engaging in prostitution satisfies the first arm of the proportionality inquiry.

ii. Minimal Impairment

[109] The Applicants submit that the Act is protective legislation which effectively balances the rights of children with the responsibility of the state to protect those children. Children who are engaging in prostitution can be apprehended and detained only in limited circumstances. While detention that restricts liberty is always serious, where there is need to protect a child, a minimal detention — a maximum of three days — does not, in my view, constitute a major impairment of the child's rights, when balanced with this need for protection.

[110] The Respondents, however, agree with Jordan P.C.J. at paragraph 155 of her written reasons, that an apprehended child could be afforded the same protection that a person detained under the Criminal Code receives. The thesis was that, as in detention under criminal proceedings, the state should have a duty ^[8] to bring the child before a judge within 24 hours after apprehension, upon a decision to confine, and the director would then have to show cause for confining the child against his or her will. The concern of the Respondents seems to be the same as that subsequently described in two passages in K.L.W.. Arbour J., for the minority, at paragraph 13, referred to it in this way: "that harm may come to the child from precipitous and misguided state interference." L'Heureux-Dubé J.,^[9] for the majority, observed at paragraph 108:

Child protection authorities may err, of course, in their assessment of whether a child is in need of protection through apprehension, and they may intervene unnecessarily. If court supervision occurs post-apprehension, this risk of a wrongful infringement of rights lies with both parents and children.

The protection sought was that of a prompt post-apprehension review of the state's action (whether police or a director) by a fair hearing before an independent and impartial judicial officer, under the thesis that no one ought to be a judge of his or her own cause: see Arbour J., at paragraphs 17-24. L'Heureux-Dubé gave credibility to such a prompt post-apprehension review at paragraphs 116 and 121-133. In the former, she observed:

…the balancing of risks and benefits suggest that while the trauma of an unjustified …[apprehension of a]… child cannot be fully redressed by a post-apprehension hearing, the infringement will be adequately reduced when the hearing is both prompt and fair. Pending the hearing, the child will be in a safe environment…

L'Heureux-Dubé J. also addressed the requirements of fairness in paragraph 123. ^[10] One of the issues in this case is who — the judiciary or the legislature — should decide the length of delay before such a post-apprehension hearing, and if the latter, are there some limits, outside of which the former will intervene.

[111] The minimal impairment portion of the section 1 analysis requires me to consider whether the government "could have chosen an alternative means which would have achieved the identified objective as effectively" — the minimal impairment test does not require the least intrusive means imaginable: Downey, at 37; Irwin Toy v. Quebec, [1989] 1 S.C.R. 927, at 992-993; RJR-MacDonald, at 305; and Butler, at 505-509.

iii. Proportionality

[113] The question under this part of the test is one of balance — whether the impairment of the rights and freedoms at issue is so severe as to outweigh the pressing and substantial objectives of the legislation, aimed at the protection of a vulnerable group (Irwin Toy, at 987 and 993). I find that the Act is proportionate to its objective. The maximum period of confinement is three days which is then subject to judicial scrutiny. Given the seriousness of the objective of protecting a vulnerable group, namely, children from sexual abuse, I find that the legislation meets the proportionality requirement.

IX. REMEDY

[114] I grant the Applicants' application for an order in the nature of certiorari, quashing the decision of Jordan P.C.J.. While it appears that the show cause hearing, which did not take place, may now be academic, if there is need to do so, I remit the matter back to the Provincial Court for the show cause hearing.

[115] There will be no costs awarded in this application.

DATED at Calgary, Alberta this 21^st day of December, 2000.

J.C.Q.B.A.

Footnotes

1. I note that this has now been changed by section 3.4 of the Amended Act.
2. I note that the provisions of the Amended Act extend the confinement period, from the previous 72 hours under the Act, to the same 5 days.
3. As compared to 72 hours under the Act, and 5 days under the Ontario Act and the Amended Act.
4. It appears that the Alberta Legislature has now addressed these legitimate concerns in section 2.1 of the Amended Act.
5. I say "alleged" because the Respondents before me objected to the use of the evidence of Ms. Udberg to establish the reasons why the police initially entered the apartment where K.B. and M.J. were found. They argued, quite correctly, that it was hearsay. They argued that it was therefore not admissible (now permitted under section 6.4(3) of the Amended Act). The Applicants say that whether or not it was hearsay is not relevant to the issues before this Court and that, in any event, the Respondents were given the opportunity to call the police officers and declined to do so.
6. In response, and at the risk of spending too much time on this tangential point, I have concluded that even though the evidence of apprehension is hearsay, it does not detract from the analysis to be made on the constitutional issue before the Court in this case. There are a couple of considerations here. First, I note that the Provincial Court has accepted the hearsay evidence of Child Welfare workers in show cause hearings under section 2(12) of the Act to establish the reasons for confinement — in essence, the decision to confine can be based on hearsay, just as a police officer can have reasonable and probable grounds based on hearsay. However, if the child disputes the reasonableness of the officers grounds for apprehension, then the police officer must be called, just as a director must be called to justify confinement. See: R. v. Collins, [1987] 1 S.C.R. 265, at 279; Re M.(K.) (Unreported - Action No. 90187741W10101 - February 5, 1999 (Alta Prov. Ct. - Carruthers P.C.A.C.J.), at 14 - 15; and Re M.(K.), Unreported - Action No. 90356501W10101 - March 10, 1999 (Alta Prov. Ct. - Cook-Stanhope P.C.J.), at 10. Second, while the issue of hearsay evidence may be a valid concern when the truth of its contents is in issue in a show cause hearing, in the context of an analysis of the constitutionality of this legislation where the adjudicative facts are not as relevant as the legislative facts, whether the evidence is hearsay or not is not determinative. This is because it is not relevant for its truth, but rather for the type of circumstances in which the apprehension may take place. In this context, the hearsay evidence is helpful to the constitutional analysis, and, as there was no other evidence led on this point, I am prepared to accept, for this limited purpose, Ms. Udberg's hearsay evidence as to the reason the officers initially apprehended K.B. and M.J..
7. Changed to five days under the Amended Act.
8. I note that section 7 of the Act is permissive in the Minister creating programs and that new section 7.1 of the Amended Act provides for an agreement to make "programs and other services" available to the child, where the director is of the opinion that the child is in need of protection.
9. Under section 2.1 the Amended Act, notice of the right to have a hearing to review the confinement must be given to the child forthwith upon the decision to confine, and a hearing is to be held (with certain rights to request an adjournment) within 24 hours of the child filing a request with the Court and serving a director. L'Heureux-Dubé J. discussed such provisions at paragraph 129 of K.L.W..
10. I note that the comments of L'Heureux-Dubé J. were made in the context of "fundamental justice" under a section 7 analysis, without the resort to section 1. I could have referenced them in the context of section 7, but I find they are appropriate also to such a section 1 analysis, as Counsel for the Applicants submitted in oral argument, and Counsel for the Respondents conceded (subject to differences such as the burden of proof), with which I agree. As set out at paragraphs 65 and 66 of Mills (1999), recognizing where the differences exist and are important (not germaine to the point at hand), the balancing process is similar between section 1 and section 7.
11. I note that this is addressed in sections 2(13) and 2.1(1) of the Amended Act.
12. Five and four days respectively, with the Amended Act now adopting a five day period.