Date: 20000728
Files: N17871, N17178

[1] This is an application by K. B. and M. J. for a ruling that the Protection of Children Involved in Prostitution Act, S.A. c. P - 19.3 (hereinafter called the Act ) is ultra vires the Province of Alberta, that it is in violation of Sections 7, 8, 9 and 10 of the Charter of Rights and Freedoms (hereinafter called the Charter) and that the violations cannot be saved by s. 1 of the Charter. For convenience, the Act is attached as Schedule "A".

ISSUES

Question 1.

[2] Do the Applicants have standing to argue that the Act is unconstitutional even though they have been released from the protective safehouse and the issue for them is moot?

Question 2.

[3] Is the Act ultra vies the Legislature of Alberta because the pith and substance of the legislation is criminal law and therefore within the exclusive legislative competence of Parliament?

Question 3.

[4] Does the Act violate sections 7, 8, 9, 10 or 15 of the Charter?

[5] (a) Does the Act violate s. 7 of the Charter because many children who are detained pursuant to the legislation are never provided the opportunity to answer the allegations that are made against them — allegations which have resulted in a deprivation of their liberty?

[6] (b) Does the Act violate s. 7 of the Charter because the children who are confined are subject to an assessment, thus denying them their right to pre-trial silence?

[7] (c) Does the Act violate s. 8 of the Charter because it provides for warrantless searches which are not subject to judicial examination other than in exceptional circumstances?

[8] (d) Does the Act violate s. 9 of the Charter because children are subject to apprehension and confinement without the opportunity to have this action judicially scrutinized?

[9] (e) Does the Act violate s. 10(b) of the Charter because it does not mandate the right to counsel for a child who has been apprehended, detained, confined or subject to assessment?

[10] (f) Does the Act violate s. 10(c) of the Charter because it does not guarantee or provide a procedure to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[11] (g) Does the Act violate s. 11 of the Charter , being the equality provisions our constitution?

Question 4.

[12] If the answer to any of the questions in 3, above, is yes, can the violations be saved by section 1 of the Charter?

FACTS

[13] K. B. and M. J., the Applicants, both seventeen-year-old females, were apprehended by Calgary Police Service officers on September 13, 1999 pursuant to the Act.

[14] The Applicants were conveyed by police to a "protective safehouse," being premises designated as such by the Minister of Children's Services, pursuant to the Act. There the Applicants were subjected to questioning by a staff member about activity related to prostitution, drug use and child protection history. The applicants were also subjected to an "intake assessment." Finally the Applicants were questioned by a Child Welfare worker and asked to indicate their consent to the confinement on a prepared form. Only one of the applicants signed the consent form.

[15] The Applicants were confined at the " protective safehouse" for two days. On September 15, 1999, the Applicants were brought before the Provincial Court of Alberta as required by the Act for the Director to show cause for the confinement.

[16] The Court adjourned the show cause proceeding in order to afford the Applicants time to bring this application.

RULING

Question 1.

[17] Do the Applicants have standing to argue that the Act is unconstitutional even though they have been released from the protective safehouse and the issue for them is moot?

[18] Courts do not normally hear applications when the result of the proceedings will have no effect on the parties because the actions complained of have run their course and no remedy is available. Examples are varied: the death of parties challenging the validity of a parole revocation hearing [Re Cadeddu and The Queen (1983), 4 C.C.C. (3d) 112] or a speeding ticket [Mercure v. The Queen (1988) 39 C.C.C. (3d) 385] ended any concrete controversy between the parties; a challenged municipal by-law was repealed prior to a hearing, leading to the conclusion that a decision could have no effect on the parties except as to costs [Moir v. Village of Huntingdon (1891), 19 S.C.R. 363]; or where applicants sought a judgment excluding the respondents from sitting and exercising their functions as Members of the Ontario Legislative Assembly, but the Legislative Assembly had been dissolved before the hearing in the Supreme Court of Canada [R. ex rel. Tolfree v. Clark, [1944] S.C.R. 69.]

[19] Sopinka, J., described the issues to be considered when deciding whether standing should be granted to an Applicant even though the issues be moot for that person in Borowski v. Canada (Attorney-General) (1989), 47 C.C.C. (3d) 1. He stated that when the issues are of a recurring nature, although of brief duration, the mootness doctrine is not to be strictly applied. This relaxation of doctrine is necessary in such cases in order to ensure that an important question which might "independently evade review" be heard by the Court.

[20] He also stated at page 15,

"There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law…"

[21] I accept the submissions of the Applicants that, given the nature of the legislative provisions which are the subject of this application, the notice provisions of a constitutional challenge make it impossible to have a "live issue" between the parties at the hearing date. In addition I am satisfied that the apprehension and confinement of children under the provisions of the Act are matters of public importance such as envisaged by Sopinka, J. and that they should receive judicial scrutiny as to their constitutional validity.

[22] The answer to this question is yes. The applicants have standing to bring this application.

Question 2.

[23] Is the Act ultra vies the Legislature of Alberta because the pith and substance of the legislation is criminal law and therefore within the exclusive legislative competence of Parliament?

[24] In R. v. Swain (1991), 63 C.C.C.(3d) 481 (S.C.C.), Lamer, C.J.C. stated that in order to determine the pith and substance of any particular legislative provision it is necessary to examine that provision in its overall legislative context and to identify the dominant or most important characteristic of the challenged law. A similar approach was used in Schneider v. the Queen [1982] 2 S.C.R. 112 and in Westendorp v. the Queen [1983] 1 S.C.R. 43.

[25] I accept that one of the objectives of the Act is, at least indirectly, the elimination of prostitution in which children are working. I do not agree, however, that it is a colourable attempt to legislate in the field of criminal law.

[26] There are many ways to attempt to eliminate the sex trade which exploits children. Ss. 212(2) and 212(2.1) of the Criminal Code invoke the criminal process. In Alberta the government created a task force in June, 1997 with a mandate to review the work which had previously been done on the issue of child prostitution and to make recommendations which would enable the government to address this problem. The Protection of Children Involved in Prostitution Act was enacted as a result of the recommendations of the task force.

[27] It is not axiomatic that the legislation is penal or criminal law because it authorizes the apprehension and detention of children engaged in prostitution. If the only reason for trying to eradicate this activity were moral, it would follow that legislation directed at this purpose would be criminal law. See, Swain , supra, at page 525:

"A statute that includes a prohibition and a penalty and is enacted to serve a public purpose commonly recognized as being criminal in nature will fall within the scope of Parliament's criminal law power … such public purposes include peace, order, security, health, and morality." (Emphasis added.)

[28] There are, however, valid reasons for trying to eliminate prostitution in which children are involved which are not based in morality. Prostitution is a dangerous enterprise; female participants, whether children or adult, are subject to serious harm and even death at the hands of both pimps and johns. Alcoholism and drug addiction are widespread within the trade. The risk of sexually transmitted disease is so high as to be a significant public health risk.

[29] I do not accept the submissions of the Applicants that the use of significant periods of detention in the Act results in an invasion of the domain of criminal law. This issue was considered by the Supreme Court of Canada in Schneider, supra.

[30] The Court there considered the constitutional validity of the Heroin Treatment Act, S.B.C. 1978, c.24. That legislation provided for the evaluation, treatment and rehabilitation of narcotic dependent persons. It contained a number of sections which allowed for preliminary detention for a period of up to 72 hours and thereafter, upon application to the Court, for a Court-ordered period of up to six months. Dickson, J., speaking for the Court stated;

"It is true that compulsory treatment under the Act may involve restraints upon freedom, including a period of treatment in a treatment centre, but such provisions do not dictate that the statute be characterized as criminal legislation."

[31] He quoted with approval the comments of Huband, J. in Reference re Intoxicated Persons Detention Act, [1981] 1 W.W.R. 333 (Man. C.A.) at page 338 which confirmed this same principle and applied it directly to the child welfare context;

"One cannot gloss over the reality that, under the terms of the Act , a person who becomes intoxicated can be confined against his will in jail-like surroundings for a period of time of, and up to 24 hours. But the fact of confinement does not necessarily take this legislation into the realm of criminal law. Legislation in the field of mental disease and quarantine relative to communicable diseases can involve involuntary confinement, but clearly it is dealing with the health of the citizen, as opposed to criminality. Child protection legislation authorizes the confinement of children in protective custody, for example, to prevent harm from potentially abusive parents. That confinement is for the safety and security of the individual and does not invade the domain of criminal law."

[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.

[33] The fact that prostitution is not an illegal activity for children or adults does not alter the fact that children should be protected from it. Attempts to control and or eliminate child prostitution can be compared with tobacco control legislation. That legislation came into being because we believe that we should try to protect children from the effects of smoking.

[34] The various tobacco control acts are designed to eliminate the use of tobacco by minors and, by extension, the population at large over a period of time. This objective coupled with the significant sanctions which may be imposed does not constitute a colourable attempt to legislate in the field of criminal law. It is first and foremost public health legislation. The federal Tobacco Act, S.C. 1997, c.13 and certain provincial enactments such as the Tobacco Access Act, S.N.S. 1993, c. 14 and the Tobacco Control Act, S.O. 1994, c.10, prohibit the sale of cigarettes and tobacco products to minors but the provincial legislation which control the sale of tobacco products to minors by prohibition and the use of penal sanctions is widely accepted to be legislation in relation to health and therefore within the legislative competence of the provincial legislatures. See R. v. Sobey's Inc. (1998), 134 C.C.C. (3d) 344 (N.S.C.A.).

[35] The Act , not unlike the tobacco control legislation, 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.

[36] It is not an all-encompassing scheme which "mandates the provision of services for the betterment of the health and welfare of children" such as was created by the Legislature in this province when the present Child Welfare Act, S.A. 1984, c-8.1 was enacted. It does not create a comprehensive treatment scheme such as was established in the Heroin Treatment Act. It does not require that the detained child be placed in any institution or program that could be said to coincide with the objectives set out in the preamble.

[37] There is no provision for determining the efficacy of the legislation. The Director would have the public believe that because hundreds of apprehensions are accomplished in a given period the Act is achieving its stated goal of protecting children. Yet we are left not knowing anything, except by way of anecdotal evidence, of the lives of the children after their periods of confinement are completed. How many accept the services offered? How many return to the same lifestyle? How many gradually escape from that world? Are those numbers any different from the numbers where the prostitutes have not been apprehended and confined but have moved onto a more conventional lifestyle? How many children who have been apprehended and confined are subsequently beaten by their pimps? Are those numbers any different from the beatings endured by girls in the trade who have never been apprehended? Are beatings by pimps taking place because they are sending a message to these girls and others that they must not reveal anything during the assessment which would endanger the pimp or effect him economically? Are there beatings by pimps which take place to encourage the girls to replace the income that was lost during the time of confinement? What attempts are being made to determine whether under-age prostitutes are actually leaving the trade or merely working in trick pads? The questions go on and on, but the Government of Alberta has not made a commitment to provide us with answers even though the liberty of children is being curtailed.

[38] None of these omissions or the fact that the legislation may be inadequate to achieve its stated purpose affects the constitutional validity of the Act . There is no requirement in Canadian constitutional law that legislation be perfect, or even that it be demonstrably effective. A recent example of this feature of our constitution is the Supreme Court of Canada ruling upholding the validity of the federal firearms legislation. See, Reference Re: Firearms Act (Can.) , [2000] S.C.J. No.31. The naysayers were vociferous from the time that the bill was first introduced in Parliament, complaining, inter alia , that the legislation could not achieve its stated objective. In response to this particular challenge, the Court stated at Paragraph 57 , "… The efficacy of a law, or lack thereof, is not relevant to Parliament's ability to enact it under the division of powers analysis."

[39] The Act does not attempt to control or eliminate prostitution in the same way as the Calgary by-law which was considered by the Supreme Court of Canada in Westendorp , supra, and declared ultra vires because there was an "over-reaching … which offends the division of legislative powers." That by-law prohibited any person from "being or remaining on a street for the purpose of prostitution" It also forbade any person from approaching "another person on a street for the purpose of prostitution." There is nothing in the Act which remotely resembles that by-law.

[40] I am troubled, however, by section 9 of the Act which makes it an offence to cause a child to be a child in need of protection within the meaning of the Act and which provides by way of penalty upon conviction a fine of up to $25,000 or imprisonment up to six months, or both. I have not, however, been asked to specifically rule on the constitutionality of this section, and therefore will refrain from doing so. That issue is for another day.

[41] Save for my misgivings concerning section 9, I am satisfied that the pith and substance of the Protection of Children Involved in Prostitution Act is the protection of children from the sexual abuse and other risks inherent in the sex trade. It does not invade the domain of the criminal law. It is within the legislative competence of the Legislature of Alberta pursuant to the powers allocated to the provinces in ss. 92(13) and 92(16) of the Constitution Act, 1867 (formerly the British North America Act, 1867.) See Schedule "B".

Question 3.

[42] Does the Act violate sections 7, 8, 9 or 10 of the Charter?

[43] (a) Does the Act violate s.7 of the Charter because many children who are apprehended and confined pursuant to the legislation are never provided the opportunity to answer the allegations that are made against them — allegations which have resulted in a deprivation of their liberty?

[44] S. 7 of the Charter provides that 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.

[45] The Act makes the following provisions for the apprehension and confinement of children:

1. A child can be apprehended and confined without judicial authorization where there are reasonable and probable grounds to believe that her life or safety is seriously and imminently endangered because she is engaging in prostitution or attempting to engage in prostitution.
2. Apprehension and confinement are also permitted if the Director or a police officer has obtained an ex parte order from a judge, that is to say, without notice to the affected person [the child].

[46] Following the apprehension and confinement of a child the Director is required in certain circumstances, but not all, to appear before the Court to show cause why the confinement was necessary:

1. No show cause hearing is required if the child is apprehended and returned to her guardian or an adult pursuant to S. 2(1)(a).
2. No show cause application is required if the apprehension and confinement were pursuant to ex parte Court order.
3. If a child is apprehended without judicial authorization and is subsequently detained in a protective safehouse pursuant to S. 2(10), the Director must appear before the Court within three days of the commencement of the confinement to show cause why the confinement was necessary.

[47] Thus, in two of the three apprehension situations contemplated by the Act the child never has an opportunity to refute the reason for the apprehension, she never has the chance to establish that there were no reasonable and probably grounds for the apprehension and confinement, she is never provided an occasion to say, "I have never engaged in nor tried to engage in prostitution."

[48] I am satisfied that this is a deprivation of "life, liberty and security of the person" within the meaning of S. 7 of the Charter and that this deprivation is not in accordance with the principles of fundamental justice.

[49] In B.(R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315, the Court considered the apprehension and confinement provisions of the Ontario Child Welfare Act.

[50] That case was an appeal by parents of the Jehovah's Witness faith against a Court- ordered, time-limited wardship and a subsequent finding at a status review that the child remained a child in need of protection within the meaning of the legislation. The Court orders were made to allow medical professionals to administer treatment which the parents objected to.

[51] The legislation provided for the apprehension and confinement of a child without warrant. Upon such apprehension the Director (or equivalent) was required to take the matter before a Court within five days for to determine whether the child is in need of protection.

[52] The parents maintained the Ontario Child Welfare Act violated S. 7 of the Charter because the combined effect of the definition of a "child in need of protection" and the various powers and procedures in the Act was to deny parents a right to choose medical treatment for their infants. They also claimed that these same definitions, powers and procedures infringed their freedom of religion as guaranteed under S. 2(a) of the Charter.

[53] The reasoning of the Supreme Court of Canada in B.(R.) does not support the Director's position that the apprehension and confinement provisions of the Act do not result in a violation of s.7 of the Charter. While the Court upheld the validity of the apprehension and confinement provisions in the Ontario Act, it is clear that the decision rested on the provision in the Act of a comprehensive procedural system which the Court described as being in accord with the principles of fundamental justice.

[54] La Forest, J. stated at page 374,

"This Court has on different occasions stated that the principles of fundamental justice are to be found in the basic tenets and principles of our judicial system, as well as in the other components of our legal system … The state's interest in legislating in matters affecting children has a long-standing history … 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 interventions 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 requirement of fair procedure … As for the constitutionality of the procedure under the Act, there is no need to discuss it at length, since I am of the view that the scheme designed by the legislature accords with the principles of fundamental justice. The parents must receive reasonable notice of the hearing in which their rights might be affected … Further, the wardship order depriving the parents of the right to refuse medical treatment for their infant is granted by a judge following an adversarial process where conflicting evidence may be presented. The parents can act through counsel, present arguments, cross-examine witnesses, and so on. The onus of proof is on the Children's Aid Society, and it has been recognized by the Courts, and by Main, Prov. Ct. J. in this case, that the Children's Aid Society must provide a strong case. Finally the initial order granting wardship to the Children's Aid Society must be reviewed before its expiry. (Emphasis added.)

He also stated at page 387,

"The procedural requirements of the principles of fundamental justice can be attenuated when urgent and unusual circumstances require expedited Court action."

[55] The legislative scheme challenged in B.(R.) is notably different than that created in the Children Involved in Prostitution Act. La Forest, J. noted these features:

1. Reasonable notice of the hearing;
2. A hearing before a judge;
3. An adversarial process where conflicting evidence can be presented;
4. The onus of proof borne by the Children's Aid Society, an onus which the courts have held can only be discharged by presenting a strong case; and,
5. The mandatory process wherein the initial order granting wardship must be reviewed before its expiry.

[56] I accept that none of the features in the Ontario Child Welfare Act is essential to the meet the requirements of fundamental justice. The essentials will vary depending on the objectives of the legislation. What is mandatory, however, is that when the rights of any individual are being affected by the actions of the state, the procedure in its totality must be fair. None of these features described in B.(R.) appear in the Alberta legislation. The procedure in the Act is not fair.

[57] I accept that the provision of notice to the children about to be apprehended would result in very few apprehensions being carried out. 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.

[58] The emergent nature of the apprehension process which was described in the evidence does not demand the draconian attenuation of procedural safeguards in the Act. A procedural system which as I stated above "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 not have any impact on the nature of the apprehension process and might well meet the requirements of fundamental justice.

[59] (b) Does the Act violate s.7 of the Charter because the children who are confined are subject to an assessment, thus denying them their right to pre-trial silence?

[60] I am satisfied that the assessment which takes place in the protective safe house after a child is apprehended and confined does not offend the right to pre-trial silence guaranteed by S.7.

[61] Assessments are not unique to this legislation. There is provision for Court ordered assessments in, for example, the Young Offenders Act , R. S.C. 1985, c. Y-1, at s. 13.

[62] In Her Majesty the Queen v. S.A.F., (1990), 104 A.R.83, Landerkin, Prov. Ct. J. considered the question of whether ss.13(1)(a) and 13(1)(e) of the Young Offenders Act violated s. 7 of the Charter. He stated at Paragraph 24, "…[the young person] has the right to invoke his common law right to remain silent through this process …" and, at Paragraph 25, held;

"It is my view that by invoking the provisions of s.13 of YOA for the purpose of aiding myself in future deliberations on the issue of transfer I am not directing the young person to speak; rather, I am requiring he be examined by a psychiatrist who shall report to the Court his findings in writing. It is for the young person to elect what he shall say or not say … Nothing in s.13 … compel[s] him to breach his right to remain silent. I cannot find any right of his guaranteed by s.7 of the Charter that will be infringed by a s.13 order."

[63] In R. v. H.(A.B.) , [1991] O.J. 1785, October 9, 1991, Vaillancourt, Prov. Div. J. considered the same issue. Dealing with the issue some twenty months later than Landerkin, J., Vaillancourt had the benefit of the Supreme Court of Canada ruling in R. v. Hebert (1990) 57 C.C.C.(3d) 1. His ruling was the same as that of Landerkin, J. in S.A.F.

[64] Children apprehended and confined under the Act are in no different position than young persons subject to s. 13 orders in Young Offender proceedings. They are not compelled to speak; the assessment process does not violate their S. 7 right to pre-trial silence.

[65] (c) Does the Act violate s. 8 of the Charter because it provides for warrantless searches which are not subject to judicial review other than in exceptional circumstances?

[66] S. 8 provides that everyone has the right to be secure against unreasonable search or seizure.

[67] The Act makes the following provisions regarding search and seizure:

[68] S. 2(9) Notwithstanding subsection (1), if a police or director has reasonable and probable grounds to believe that a person is a child and that the child's life or safety is seriously and imminently endangered because the child is engaging in prostitution or attempting to engage in prostitution, the police officer or director may apprehend and convey the child to a protective safe house without a [judicial] order.

[69] S. 2(11) If subsection (9) applies, a police officer or director who has reasonable and probable grounds to believe that the child may be found in a place or premises, without an order and by force if necessary, enter that place or premises and search for the child.

[70] Historically the courts allowed a warrantless entry to effect an arrest "if otherwise [the Sheriff] may not enter." The question of warrantless searches was considered in 1986 by the Supreme Court of Canada in R. v. Landry (1986), 25 C.C.C. (3d) 1. Dickson, C.J.C. concluded there were sound policy reasons to retain the law as it was. The matter came again to the Supreme Court for consideration in Feeney v. the Queen (1997), 115 C.C.C. (3d) 129. Sopinka, J. stated for the majority at page 153(e),

"There is no question that the common law has always placed a high value on the security and privacy of the home … Notwithstanding its prior importance, however, the legal importance of the privacy of the home was significantly increased in importance with the advent of the Charter. Section 8 prevents all unreasonable searches and seizures. In Hunter v. Southam Inc. … the seminal case on s. 8, Dickson J. (as he then was), writing for the Court, discussed the impact of the Charter on searches and seizures in these terms …

"In my view the interests protected by s.8 are of a wider ambit than those enunciated in Entick v. Carrington … S. 8 is an entrenched constitutional provision. It is not therefore vulnerable to legislative encroachment in the same way as common law protections. … It guarantees a broad and general right to be secure from unreasonable search and seizure."

and at page 155(h),

"I recognize that there are exceptions with respect to the unreasonableness of warrantless searches for things. A warrantless search will respect s. 8 if authorized by law and both the law and the manner in which the search is conducted are reasonable …" (Emphasis added.)

[71] By authorizing warrantless and forcible entry into a dwelling-house, the Act derogates from the security guaranteed in Canada by S. 8 of the Charter . This derogation must, therefore, be examined to ensure its compliance with the standards described by Sopinka, J. in Feeney.

[72] The examination requires the following issues be considered:

1. Is the search authorized by law?
2. Is the law reasonable?
3. Is the manner in which the search is conducted reasonable?

RULING

[73] 1. Yes, see ss. 2(9) and 2(11), supra.

[74] 2. Yes, the law is reasonable.

[75] The emergent nature of the situation which sanctions this warrantless entry in derogation of S. 8 is not ipso facto an emergency. It is an emergency which is created by definitions and conditions described in a statute. It must therefore meet the threshold test described by Sopinka, J. — it must be reasonable and the manner in which it is carried out must be reasonable.

[76] The first step in the justification of the warrantless and forcible entry is S. 1(2) of the Act which defines a child as being in need of protection if she is engaged in prostitution or attempting to engage in prostitution. That definition is the foundation for all other provisions in the Act. It removes any doubt that such a child is deserving of our protection.

[77] Having embraced our social values in S1(2), the Act then provides for warrantless forcible entry in order to apprehend a child if 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 is attempting to engage in prostitution the officer or director may apprehend the child without warrant and using force if necessary.

[78] Our belief system as a community regarding the involvement of children in the sex trade satisfies me that a statute which provides for warrantless entry using force if necessary into premises or even a dwelling-house, to apprehend a child who is endangered because she is engaging in or attempting to engage in prostitution, is a reasonable law. Not all children who are affected by the legislation will agree, but the community is entitled to make that determination regardless of the views of some children. The creation of legislation is acknowledged to be an adult responsibility in the same way that voting is an adult privilege. Our democratic institutions allow us to create age limits for certain activities — even though some may view those limits as artificial barriers to freedom of expression. This is part of the concept which we understand to be the parens patriae jurisdiction of the state.

[79] 3. Is the manner in which the warrantless search is carried out reasonable?

[80] This question can only be answered when a particular search is scrutinized by a Court. 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. Unless every warrantless search is subject to judicial scrutiny the protections afforded by s. 8 are meaningless; the section ceases to be an entrenched constitutional provision as defined by Dickson, J. (as he then was) in Hunter, supra.

[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.

[82] S. 2(11) therefore violates s. 8 of the Charter.

[83] I would like to note that the show cause provisions in the Act are very different from the Secure Treatment provisions in the Alberta Child Welfare Act. When any child is confined pursuant to a certificate issued pursuant to S. 41(1) of that legislation, the director is required to appear before the Court to show cause why the certificate was issued and to satisfy the Court that certain procedural safeguards were complied with. Those safeguards require that a certificate include a statement showing the reason for the confinement, the duration of the certificate, the date, place and time at which the appearance to show cause will be held, a statement that the child may be represented by a lawyer at any appearance before the Court, and the address and telephone number of the nearest office of the Legal Aid Society. In addition the certificate must be served on the child in respect of whom it is issued not more than 1 day after it is issued. For reasons which were never explained these procedural safeguards are not incorporated in the Act. Are young prostitutes not worthy of the same safeguards as children who are conduct disordered, drug addicted or perhaps mentally ill? Is this the same community response that Mary Magdalene endured?

[84] (d) Does the Act violate s. 9 of the Charter because children are subject to apprehension and confinement without the opportunity to have this action judicially scrutinized?

[85] S. 9 Everyone has the right not to be arbitrarily detained or imprisoned.

[86] The Act does meet the requirements of s. 9 merely because it defines who may or may not be detained.

[87] Any child may be affected by the Act. The children of Alberta constitute a large category, not a narrowly defined class of individuals. The class only becomes narrowly defined when a police officer or director has a belief based on reasonable and probable grounds that a child is engaging in or attempting to engage in prostitution. That belief may be well-motivated but it may not be well-founded and it may be wrong.

[88] Just as some police officers exceed their powers during criminal investigations, so too will they exceed them in some apprehensions pursuant to this legislation. What of the poor child who is wrongfully apprehended but has no opportunity to convince a judge that the apprehension, although well intentioned, was not justified in law? If she was wrongfully detained by a police officer or officer in charge following a police investigation concerning a criminal offence she would be taken before a justice to determine the question of release. Is her right to be secure against arbitrary detention which may result from the application of this Act to be ignored because she is a child, or because we are willing to sacrifice her constitutional rights so as to be able to protect another child?

[89] The existence of an ex parte judicial order which authorizes some apprehensions does not assist the government in its claim that the legislation is not arbitrary. The apprehension authorized by ex parte order may be as flawed as the apprehension without order. This is an illustration of why the courts are or should be reluctant to grant ex parte orders. Only one side of the dispute is presented. There is always another side to the story and this may change the result. That is why these orders are time-limited and set a date for the matter to return to Court on notice to the respondent so that the matter can be fully adjudicated.

[90] Legislation which authorizes apprehension and confinement is arbitrary if it provides no protections for the subject against the actions of the state. Examples of such safeguards can be found in ss. 503 and 525 of the Criminal Code and it may be that the procedures in the Heroin Treatment Act (now repealed) would pass s. 9 scrutiny.

S. 503 "A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law, namely,

1. where a justice is available within a period of twenty-four hours after the person has been arrested or delivered to the peace officer the person shall be taken before a justice without unreasonable delay and in any event within that period, and
2. where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible …"

[91] The remainder of the section deals with the fixing of a date and place for hearing, the provision of notice, factors to be considered by the judge on the hearing and the type of order that may be granted.

[92] This section was considered by the Manitoba Court of Appeal in R. v. Reimer (1987), 47 Man. R. (2d) 156. The accused had been detained within the meaning of this provision pending trial. Some two hundred and thirty eight days after he had been detained, the authorities of the correctional institute in which the accused was being held awaiting trial had not complied with the requirement of s. 525 [then s. 459(1)]. The Court of Appeal upheld the ruling of the motions judge that the failure to bring the accused forward for a judicial reconsideration of his detention as required by s. 525 resulted in and arbitrary detention and imprisonment contrary to s. 9 of the Charter. (Emphasis added.)

[93] It is clear when I draw on the provisions of the Criminal Code in this analysis that I equate apprehension and confinement with arrest and detention. Despite the director's emphasis on the concepts of apprehension and confinement (concepts which borrowed from the Child Welfare Act), I can find no reason in the context of a s. 9 challenge to distinguish apprehension from arrest or confinement from detention. The effect of this is the same regardless of the semantic distinctions: the subject is deprived of her liberty.

[94] 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 results in a violation of s. 9. What could be more arbitrary than a review of the apprehension of some girls and not of others? The government has argued that there is a criterion which establishes when a show cause application is required and that this removes the element of arbitrariness. They have never explained why there is no necessity for a hearing following every apprehension, a hearing similar in form and content to those required by the judicial interim release provisions of the Criminal Code.

[95] The Act violates s. 9 of the Charter.

[96] (e) Does the Act violate s.10(b) of the Charter because it does not mandate the right to counsel for a child who has been apprehended, detained, confined or subject to assessment?

[97] S. 10(b) Everyone has the right on arrest or detention … (a) to retain and instruct counsel without delay and to be informed of that right.

[98] The answer to this question is "No".

[99] There is no requirement in our constitution that the various protections afforded by the Charter afforded must be incorporated into legislative enactments. Some legislation does incorporate certain Charter protections. The Young Offenders Act, R.S.C. 1985, c. Y-1, in s. 11 provides that a young person has the right and retain and instruct counsel without delay. The secure treatment provisions of the Alberta Child Welfare Act require that a certificate which authorizes confinement shall contain, inter alia , a statement that the child may be represented by a lawyer at any appearance before the Court and shall contain the address and telephone number of the nearest office of the Legal Aid Society.

[100] Legislation which affects the rights of children may be more likely to include such provisions than, say, the Highway Traffic Act or the Income Tax Act and it may be desirable to make these provisions in legislation which directly affects children. The desirability of such an inclusion does not, however, create a higher constitutional standard for children than for adults.

[101] (f) Does the Act violate s.10(c) of the Charter because it does not guarantee or provide a procedure to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful?

[102] S. 10(c) Everyone has the right on arrest or detention … (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[103] For the same reasons as the answer to Question 3(d), the answer to this question is "No".

[104] (g) Does the Act violate S.15 of the Charter being the equality provisions of the Constitution?

[105] Having concluded that this legislation is designed for the protection of children, it is not necessary for me to consider this issue.

[106] I raised this issue on my own motion at a time when I was struggling to characterise the legislation. I thank counsel for attending diligently to the additional burden I imposed upon them.

Question 4.

[107] Can the violations of ss. 7, 8 or 9 be saved by section 1 of the Charter?

[108] When this issue was being argued, the director maintained that the Act did not violate any section of the Charter and chose not to make any submissions on the issue. As a corollary, of course, there was no evidence called which was specifically addressed to the s.1 inquiry to assist me in my deliberations. I am left, therefore, with only the submissions of the Applicants to consider.

[109] The Supreme Court of Canada ruled in R. v. Oakes (1986), 24 C.C.C. (3d) 321 that when a Court embarks upon a s.1 enquiry evidence will generally be required to prove the constituent elements of the inquiry, but the director's position leaves me with no alternative but to proceed without it. I hope this is one of those cases that Dickson, C.J.C. as he then was, described in Oakes as having elements which are self-evident or obvious.

[110] At pages 346 - 348, Dickson, C.J.C. held,

"The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation … The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability … The preponderance of probability test must be applied rigorously … Where evidence is required in order to prove the constituent elements of a s. 1 inquiry and this will generally be the case, it should make clear to the Court the consequences of imposing or not imposing the limit … A Court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decision. I should add, however, that there may be certain case where certain elements of the s. 1 analysis are obvious or self-evident.

"To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom … The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

"Secondly, once a sufficiently significant objective is recognized, then the party invoking s.1 must show that the means chosen are reasonable and demonstrably justified … this involves a form of proportionality test … Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interest of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question … thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance"

"With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter ; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation and the degree to which the measures which impose the limits trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance and the first two elements of the proportionality test are satisfied, it is still possible that because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society."

[111] With regard to the first criteria described by Dickson, C.J.C., I accept that the objective of the Act is to protect children from sexual abuse and, with some reservations which have not been addressed because of the refusal of the director to address this question either by calling evidence or by making submissions, I accept that this is a matter of pressing and substantial concern in a free and democratic society. I am satisfied that the objective is of sufficient importance to warrant overriding a constitutionally protected right.

[112] The second criteria requires that the means chosen be reasonable and demonstrably justified. This involves a form of proportionality test as described, supra.

[113] In the absence of evidence addressing these issues, I accept that the measures of apprehension, confinement, assessment and even warrantless entry were all carefully designed to achieve the stated objective. The physical removal of the child by apprehension from circumstances where she is being sexually abused is rationally connected to that objective. With reservations, I accept that confinement is rationally connected to that objective because it allows for the director to assess the child to determine what remedial measures may be taken to address whatever it is that has lead to the child's involvement or near involvement in prostitution.

[114] I am not satisfied on a balance of probabilities, and certainly not satisfied when I apply what I believe to be the rigorous test described by Dickson, C.J.C., that the violations of ss. 7, 8 and 9 impair the affected rights "as little as possible". As regards the s. 7 violations, it is not that the apprehension per se fails to meet the standard required. It is the procedural system created in the Act which fails to meet the requirements of the principles of fundamental justice. The creation of such safeguards would not necessarily affect the application of the Act. 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.

[115] The Act already incorporates modern technology in the use of recorded telephone applications for apprehensions as does the Child Welfare Act. If technology can expedite justice for the director it would appear self-evident that it can equally make justice more readily available to those who rights are being infringed. The Supreme Court ruling in B.(R.) and the sections in the Act which provide for telephone applications make it clear that procedural systems can be created which meet the requirements of the principles of fundamental justice. Since this has not been done, and there has been no evidence concerning why it would not be workable, the procedural system enacted cannot be said to impair 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 "as little as possible."

[116] As I finish with this s.1 inquiry I note that even in the pre-Charter days when the Schneider case was decided Dickson, J., as he then was, commented on the safeguards which had been built into the Heroin Treatment Act, "demonstrating a concern for the protection of the individual who finds himself subject to the provisions of the Act," citing both strict time limits and specified judicial review provisions. The Legislature of British Columbia realized even then that the rule of law demands procedural safeguards. The Act demonstrates no similar concern for the protection of the individual.

[117] I find that there is a no proportionality in the Act between the means adopted and the desired objective.

[118] Similarly, the impairment of the right to be secure from unreasonable search and seizure (s. 8) is not impaired "as little as possible." If a system can be devised in Ontario to ensure that rights are only to be denied in accordance with the principles of fundamental justice, so too can a system be established which would ensure that warrantless searches could be scrutinized each time they occur.

[119] Finally, the right to be secure against arbitrary detention or imprisonment is not minimally impaired. Although the children detained pursuant to the Act are in no way to be viewed as criminal accused, I can see no reason why their right to be free from arbitrary detention and imprisonment should not be as equally secure as that of the person charged with an offence. These children are defined in the Child Welfare Act as victims … it follows that we should acknowledge and protect their rights even before we do so for an accused in a criminal proceeding. That is the moral standard to apply. The legal standard is equally clear. A system or procedural safeguards can be designed to ensure that the continued detention of a child can be reviewed forthwith, as in the criminal justice system, and at the end of the period of confinement to show cause why the director has apprehended and confined.

[120] Even if I am wrong and the first two elements of the proportionality test are satisfied, I am still satisfied that because of the severity of the effects of the measures enacted, they are not justified by the purposes they are intended to serve. There are many questions to be answered in the affirmative before I can draw such a conclusion; there is no evidence directed at the s. 1 issue which would allow me to find that the means justifies the ends.

[121] I am satisfied that the offending provisions in the Act cannot be justified in a free and democratic society.

ADDENDUM

[122] It is not my role to give the Government of Alberta a prescription for correcting this legislation and my reasons must not be seen as providing that.

[123] It is not my role to give the Government of Alberta a prescription for correcting this legislation and these reasons should not be construed as providing that. I have, however, spent many months considering these matters and have made the following observations. I emphasize that these observations are not to be construed as a surefire constitutional fix.

[124] It would be difficult if not impossible to achieve the acknowledged goal of protecting children from sexual abuse in the sex trade if all the features in the Ontario legislation were required. Apprehensions would be rare if notice was to be required. The numbers of apprehensions might be significantly reduced if a judicial authorization was required. I can see no down side however, other than the expenditure of resources, to requiring that any child who is apprehended be taken before a judge or justice of the peace within 24 hours of apprehension for the purpose of having her detention reviewed in the same fashion that an accused in a criminal matter who is detained by a police officer and not released must be taken before a justice of the peace for the purpose of a judicial interim release hearing pursuant to S. 503 of the Criminal Code.

[125] It would be possible to carry out such a review by the use of teleconference facilities such as already approved in the Act and in the Child Welfare Act. The use of this technology is authorized so that child welfare workers may obtain apprehension orders quickly. Teleconference facilities are also authorized the Access Enforcement Act. The use of this process could make counsel accessible even in remote communities where Legal Aid might not be readily available on short notice. There would be little administrative inconvenience in moving back and forth between the protective safehouse and wherever the justice of the peace or judge might be located and little time utilized which would otherwise be available for the assessment process.

[126] There is similarly no down side other than an expenditure of resources to requiring that the Director must make application to the Court regarding every child who is apprehended pursuant to the Act within 72 hours of the commencement of her confinement to show cause for that confinement. This would give every child the opportunity to be heard by a judge in an adversarial process and to give evidence which conflicts with that of the Director if she so chooses.

Dated at Calgary, in the Province of Alberta, this 28^th day of July, 2000.

• Karen J. Jordan
  Judge, The Provincial Court of Alberta

SCHEDULE "B"

Constitution Act, 1867 (formerly the British North America Act, 1867) S. 92 In each Province the Legislature may exclusively make laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,

(13) Property and Civil Rights in the Province.

(16) Generally all Matters of a merely local or private Nature in the Province.

Table of Contents

1. Definitions
2. Apprehension order
3. Director's decision
4. Notice to guardian
5. Director's responsibilities
6. Restraining order
7. Programs
8. Regulations
9. Offence
10. Consequential amendments
11. Coming into force

Preamble

WHEREAS the safety, security and well being of children and families is a paramount concern of the Government of Alberta; and

WHEREAS children engaged in prostitution are victims of sexual abuse and require protection; and

WHEREAS the Legislature of Alberta recognizes the responsibility of families, communities and the Government of Alberta to provide that protection; and

WHEREAS the Government of Alberta is committed to assisting families and communities in providing that protection; and

WHEREAS the Government of Alberta is committed to ensuring the safety of all children; and

WHEREAS the Government of Alberta is committed to assisting children in ending their involvement with prostitution;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

1. Definitions

1. In this Act,
   1. "child" means a person under the age of 18 years;
   2. "Court" means the Provincial Court;
   3. "director" means a director under the Child Welfare Act;
   4. "guardian" means guardian as defined in the Child Welfare Act;
   5. "Minister" means the Minister designated with the responsibility for the Child Welfare Act;
   6. "police officer" means a member of a police service under the Police Act and includes a member of the Royal Canadian Mounted Police;
   7. "protective safe house" means premises prescribed by the Minister as a protective safe house.


2. For the purposes of this Act a child is in need of protection if the child is engaging in prostitution or attempting to engage in prostitution.

2. Apprehension order

1. If a police officer of director believes on reasonable and order probable grounds that a person is a child and is in need of protection, the police officer or director may apply to a judge of the Court or to a justice of the peace for an order
   1. authorizing the police officer or director to apprehend and convey the child to the child's guardian or to an adult who in the opinion of the police officer or director is a responsible adult who has care and control of the child, or
   2. authorizing the police officer or director to apprehend and convey the child to a protective safe house and authorizing a director to confine the child for up to 72 hours to ensure the safety of the child and to assess the child, and if the judge of the Court or justice of the peace is satisfied that the child may be found in a place or premises, the judge of the Court or justice of the peace may authorize the police officer or director to enter, by force if necessary, that place or premises to search for and apprehend the child.


2. If, in the opinion of the police officer or director, it would be impracticable to appear personally before a judge of the Court or justice of the peace to apply for an order, in accordance with subsection (1), the police officer or director may make the application by telephone or other means of telecommunication to a judge of the Court or justice of the peace.
3. The information on which an application for an order by telephone or other means of telecommunication is based must be given on oath and must be recorded verbatim by the judge of the Court or justice of the peace who, as soon as practicable, must cause the record or a transcription of the record, certified by the judge of the Court or the justice of the peace as to time, date and contents, to be filed with the clerk of the Court.
4. For the purposes of subsection (3), an oath may be administered by telephone or other means of telecommunication.
5. The information submitted by telephone or other means of telecommunication must include the following:
   1. a statement of the circumstances that make it impracticable for the police officer or director to appear personally before a judge of the Court or a justice of the peace;
   2. the identity of the child, if known;
   3. a statement setting out the police officer's or director's grounds for believing that the person is a child and is in need of protection;
   4. a statement as to any prior application for an order under this section in respect of the same child of which the police officer or director has knowledge.


6. A judge of the Court or justice of the peace referred to in subsection (2) who is satisfied that an application made by telephone or other means of telecommunication
   1. is based on information that conforms to the requirements of subsection (5), and
   2. discloses reasonable grounds for dispensing with personal appearance for the purpose of making an application under subsection (1) may make an order conferring the same authority respecting apprehension, conveying, confinement and entry as may be conferred under subsection (1).


7. If a judge of the Court or justice of the peace makes an order under subsection (6),
   1. the judge of the Court or justice of the peace must complete and sign an order in the prescribed form, noting on its face the time, date and place at which it was made,
   2. the police officer or director, on the direction of the judge of the Court or justice of the peace, must complete, in duplicate, a facsimile of the order in the prescribed form, noting on its face the name of the judge of the Court or justice of the peace making the order and the time, date and place at which it was made, and
   3. the judge of the Court or justice of the peace must, as soon as practicable after the order has been made, cause the order to be filed with the clerk of the Court, who must provide a copy to a director.


8. An order made by telephone or other means of telecommunication is not subject to challenge by reason only that the circumstances were not such as to make it reasonable to dispense with personal appearance for the purpose of making an application under subsection (1).
9. Notwithstanding subsection (1), if a police officer or director has reasonable and probable grounds to believe that a person is a child and that the child's life or safety is seriously and imminently endangered because the child is engaging in prostitution or attempting to engage in prostitution, the police officer or director may apprehend and convey the child to a protective safe house without an order.
10. Notwithstanding subsection (1)(b), a director may confine for up to 72 hours a child conveyed to a protective safe house under subsection (9) if the director considers it necessary in order to ensure the safety of the child and to assess the child.
11. If subsection (9) applies, a police officer or director who has reasonable and probable grounds to believe that the child may be found in a place or premises may, without an order and by force if necessary, enter that place or those premises and search for the child.
12. If a director confines a child pursuant to subsection (10), the director must appear before the Court within 3 days of the commencement of the confinement to show cause why the confinement was necessary.

3. Director's decision

1. If a child is apprehended under section 2, decision
   1. a police officer that apprehends the child must notify a director forthwith, and
   2. subject to subsection (2), on the child's being conveyed to a protective safe house, a director must
      1. return the child to the custody of the child's guardian or to an adult who in the opinion of the director is a responsible adult who has care and control of the child,
      2. release the child if the child has attained the age of 16 years and in the opinion of the director the child is capable of providing for the child's 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.


2. If a child is confined and is neither returned under subsection (1)(b)(i) nor released under subsection ( 1)(b)(ii) within 72 hours after the confinement under section 2, a director must apply to the 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.
3. If a director makes an application under subsection (2), the child is deemed to have been apprehended under the Child Welfare Act.

4. Notice to guardian

1. If a child has been apprehended and conveyed to a protective guardian safe house, a director must notify the guardian of the child forthwith
   1. that the child has been apprehended, and
   2. of the intention, if any, of the director to confine the child pursuant to section 3(1)(b)(iii).


2. Notice under subsection (1) may be by any method and may be oral or in writing.
3. The validity of proceedings under this Act is not affected by the director's inability, after reasonable effort, to give notice in accordance with this section.

5. Director's Responsibilities

If a child has been apprehended and conveyed to a protective responsibilities safe house, a director has exclusive custody of the child and is responsible for the child's care, maintenance and well being while the child is confined in the protective safe house.

6. Restraining Order

1. If a child is confined under this Act and a director has order reasonable and probable grounds to believe that a person
   1. has physically or emotionally injured or sexually abused or is likely to physically or emotionally injure or sexually abuse the child within the meaning of the Child Welfare Act, or
   2. has encouraged or is likely to encourage the child to engage in prostitution, the director may apply by originating notice to the Court of Queen's Bench for an order restraining that person from contacting the child or associating in any way with the child.


2. If a child is participating voluntarily in a program to assist the child in ending involvement in prostitution and the child or the child's guardian has reasonable and probable grounds to believe that a person
   1. has physically or emotionally injured or sexually abused or is likely to physically or emotionally injure or sexually abuse the child within the meaning of the Child Welfare Act, or
   2. has encouraged or is likely to encourage the child to engage in prostitution, the child or the child's guardian may apply by originating notice to the Court of Queen's Bench for an order restraining that person from contacting the child or associating in any way with the child.

7. Programs

The Minister may establish programs that in the opinion of the Minister are necessary to assist children in ending their involvement in prostitution.

8. Regulations

1. The Lieutenant Governor in Council may make regulations
   1. respecting the rules to be followed in a proceeding before the Court under this Act;
   2. respecting the forms, including notices, to be used in any application made to the Court under this Act.
2. The Minister may make regulations
   1. prescribing premises as protective safe houses;
   2. respecting assessment of children in need of protection.

9. Offence

Any person who

1. wilfully causes a child to be a child in need of protection, or
2. obstructs or interferes with, or attempts to obstruct or interfere with, a director or a police officer exercising any power or duty under this Act is guilty of an offence and liable to a fine of not more than $25,000 or to imprisonment for a period of not more than 24 months, or to both a fine and imprisonment.

10. Consequential ammendments

(This section makes consequential amendments to the Child Welfare Act. The amendments have been incorporated in that Act.)

11. Coming into force

This Act comes into force on Proclamation. (NOTE: Proclaimed in force February 1, 1999.)