Date: 20000817
File: N18709

INTRODUCTION

[1] The matter for determination is whether this Court has the power to hear an application made by a Director of Child Welfare (the Director) to Show Cause for Apprehension and Confinement (Show Cause Application) of a child S.P. (S.P.), pursuant to section 2(10) of the Protection of Children Involved in Prostitution Act, S.A. 1999, c. P-19.3 (PCHIP Act) following the apprehension of S.P. without an order under section 2(9) of the PCHIP Act.

[2] On July 28, 2000, my sister Judge, the Honourable Judge Karen Jordan, in Alberta v. K.B. (28 July, 2000), Calgary, File No.: N17871 and N17178 (Alta.P.C.) ( unreported) (K.B. ) struck down the PCHIP Act as unconstitutional in that it offended the provisions of the Canadian Charter of Rights and Freedoms (Charter) in the protection of individual fundamental rights and freedoms . Counsel for the Director submitted that Judge Jordan did not strike down the legislation but rather pointed out defects that the Director has remedied by a timely appearance before this Court and ensuring S.P. was aware of her legal rights as set out in a new form being used by the Director for PCHIP Act applications since Judge Jordan's decision in K.B. Accordingly it was open to me to hear the Director's Show Cause Application under the PCHIP Act.

[3] Counsel for S.P. submitted that the PCHIP Act was rendered inoperative as a result of Judge Jordan's decision and accordingly there was no basis in law for the apprehension of S.P. pursuant to the PCHIP Act or for me to hear the Director's Show Cause Application under that Act. Counsel also sought costs against the Director. However, Counsel for S. P. further submitted, that there is, and always has been, jurisdiction for the Director to make an application for an Apprehension Order and for this Court to grant an Apprehension Order pursuant to the provisions of the Child Welfare Act, S.A. 1984, c. C-8.1, as am. (Child Welfare Act) and that is the appropriate legislation under which the Director should be applying to apprehend S.P.

[4] I agreed with Counsel for S.P. In the result, I did not grant the Director's Show Cause Application under the PCHIP Act. Rather, I immediately heard the Director's application for an Apprehension Order under the Child Welfare Act and made an Apprehension Order for the apprehension of S.P. as I was satisfied she was a child in need of protective services within the meaning of the Child Welfare Act.

[5] I advised I would issue Written Reasons. These are my Reasons.

FACTS

[6] On August 14, 2000 at 1:45 p.m. S.P. was apprehended in an area of Calgary known for prostitution. It is alleged that S.P. was engaged in prostitution. At 2:40 p.m., the Director filed the Show Cause Application in this Court using a two page form entitled Appearance to Show Cause for Apprehension and Confinement (the Form) and at 3:14 p.m. the Director's Show Cause Application commenced before me. Sometime between S.P.'s apprehension and the commencement of the hearing at 3:14 p.m., S.P. was given the opportunity to speak to duty counsel. She spoke with Ms. D. Mah, who has a preferred area of practice as youth counsel for young persons charged with criminal offences under the Criminal Code, Canada and the Young Offenders Act, Canada.

[7] In respect to the Form, Sections 1 - 3 remain the same as that used by the Director for PCHIP Act applications prior to Judge Jordan's decision. Since Judge Jordan's decision, the Form has been revised with the addition of sections 4 and 5. Section 1 sets out the child's name and birth date and the name of the person delegated to act for a director (the Director). Section 2 is entitled "Appearance to Show Cause for Apprehension and Confinement" and section 3 is entitled "Declaration" wherein the Applicant sets out the grounds for apprehension and confinement.

[8] The new section 4 is entitled " Notice" and is a notice to a child that the person who had apprehended the child would be appearing in this Court to show cause why the child was apprehended and confined. There is also provision for the address for this Court, the date and time for the hearing and a statement that if the child wants to speak to a judge about the information, then the child must attend the hearing. A further provision sets out that the child may be represented by a lawyer at any appearance before the Court, and gives the address of the nearest office of the Legal Aid Society of Alberta. The new section 5 is entitled "Child's Acknowledgement of Receiving Notice" (Child's Acknowledgement). In this section the child acknowledges receipt of a true copy of the Form, information as to the right to speak to a Judge, or to have a lawyer speak to the Judge on the child's behalf at the court hearing on the set date, and lastly, a statement that the notice ( presumably section 4 Notice), was read to the child and the child was aware of the child's right to contact a lawyer and attend the court hearing as set out in the Part 4 Notice. This is followed by a place for the child's signature and the date. There is a further provision for a worker to sign to the effect that the Form was served to the child but the child refused to sign the Child's Acknowledgement. Again, there is a place for the signature of the worker and date.

[9] Specific to S.P., the Child's Acknowledgement is neither signed nor dated by S.P., and the worker has not indicated by signature and date whether the Form was served to S.P. and whether she refused to sign the Child's Acknowledgement. A photocopy of Sections 4 and 5 as both appeared on the Form used by the Director for S.P.'s Show Cause Application is attached as Schedule A to these Reasons, with deletions to protect S.P.'s privacy: the worker's full name and S.P.'s full name (now appearing as intials), the D.O. number and District Office.

THE ISSUE

Does this Court have the power to hear an application under the PCHIP Act subsequent to the decision in K.B.?

[10] I hold that this Court no longer has the power to hear applications under the PCHIP Act. The law has been found to breach the Charter. In so holding, I agree with the findings of Judge Jordan. In my opinion, the Director cannot procedurally remedy Charter breaches after the fact absent Charter compliant substantive provisions having been made to the PCHIP Act by the Legislature, which is in its purview to do. The Legislature is free to craft its own solutions to this problem consistent with the Charter. Until such time as the PCHIP Act is statutorily cured by the Legislature or there is a ruling from an appellate court upholding the PCHIP Act which would then bind this Court, neither of which has yet happened, then I will continue to follow Judge Jordan's decision. Although Counsel for the Director takes the position that the legislation was not struck and has been cured by meeting the concerns of Judge Jordan, that is a misconstruction. Judge Jordan found the legislation was unconstitutional and therefore inoperative as it did not meet the requirements of the Charter. Statutorily it continues to fail to meet Charter requirements, and cannot be procedurally cured after the fact by use of a form such as the Form used in this case, or for that matter in any other case, absent substantive Charter compliant provisions in the PCHIP Act.

[11] If the contents of the Form were mandated by an amendment to the PCHIP Act in the future, then that may or may not meet the concerns of Judge Jordan. However, at present the Director is not statutorily obliged to abide by the procedural requirements set out in the Form, in this case, or in each and every other case now and in the future. Further, it is not for me to legalize after the fact that which has been found to be unconstitutional and inoperative and remains unconstitutional and inoperative. That is for the Legislature. The PCHIP Act has not been amended by the Legislature and cannot be cured by the Director through the voluntary adoption of a Form not statutorily required by the PCHIP Act in this case and in each and every other case now and in the future. Ultimately it is for the Legislature to decide whether it wishes to remedy the PCHIP Act, absent a successful appeal, or in any event of an appeal.

[12] In the result I declined the Director's Show Cause Application. There was therefore no legal reason under the PCHIP Act for S.P. to remain in the courtroom given the legislation is inoperative. She left at 3:25 p.m. At 3:30 p.m., the hearing began into the Director's application for an Apprehension Order under the Child Welfare Act and concluded at 3:35 p.m. when I granted the Apprehension Order.

[13] The application under the Child Welfare Act was not opposed by Counsel for S.P. Having heard the evidence, I was satisfied that S.P. was a child in need of protective services within the meaning of sections 1(2)(e) and (i) and (3)(c) of the Child Welfare Act as follows:

1(2) For the purposes of this Act, a child is in need of protective services if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any one of the following:
…
(e) the guardian of the child is unwilling or unable to protect the child from physical injury or sexual abuse;
…
(i) the condition or behaviour of the child prevents the guardian of the child from providing the child with adequate care appropriate to meet the child's needs.
…
(3) For the purposes of this Act,
…
(c) a child is sexually abused if the child is inappropriately exposed or subjected to sexual contact, activity or behaviour including prostitution related activities.

Having been satisfied that S.P. was in need of protective services, I granted an Apprehension Order for her (with a clause allowing for police assistance in the event the Director required such assistance to apprehend S.P.). The Apprehension Order took effect immediately and was in effect for 24 hours with leave given to the Director to apply to extend the time for S.P.'s apprehension beyond 24 hours in the event she had not been apprehended within that time period.

[14] I note that throughout it was open to the Director to apply for an Apprehension Order under the Child Welfare Act which is a remedy that has been and continues to remain open to the Director. I would also note that the assessment and treatment remedies available to the Director for a child such as S.P. under the Child Welfare Act are more comprehensive and of longer duration than those available under the PCHIP Act.

[15] In my view the actions of the Director in the bringing a Show Cause Application under the PCHIP Act in the current circumstances, rather than an Application for an Apprehension Order under the Child Welfare Act may have put S.P. at further risk than should have been the case. The Child Welfare Act has provision for emergency Applications for Apprehension Orders by telephone when this Court is not sitting or the risk of harm to a child is such that a child welfare worker cannot come to Court to make the application because of the emergent nature of the child's risk. There are always two Judges of the Family Court, one from each of the Calgary and Edmonton Divisions of the Court, constantly available by telephone 24 hours a day, 7 days a week, 365/366 days of the year to hear emergency Apprehension Applications by telephone.

[16] In S.P.'s case (or for that matter in the case of any other child) a telephone Apprehension Application under the Child Welfare Act could have been made as soon as the authorities became aware of S.P.'s presence in a location known for prostitution. In fact I was on duty as one of the scheduled Judges to hear such applications on August 14, 2000 and would have been available to hear that Apprehension Application when S. P. came to the attention of the authorities, or at 1:45 p.m. when it appears S.P. was apprehended pursuant to the inoperative PCHIP Act rather than the operative Child Welfare Act. In any event, for reasons that did not become clear to me, the Director decided not to access this remedy but rather to challenge Judge Jordan's decision before another Judge of this Court.

RESULT

[17] The Director's Show Cause Application was dismissed because the PCHIP Act remains unconstitutional and therefore inoperative.

[18] The Director's Application for an Apprehension Order under the Child Welfare Act was granted for a 24 hour period, and included a clause for police assistance if required to apprehend S.P. with leave to the Director to apply for an extension of the time for apprehension in the event S.P. was not apprehended within 24 hours.

[19] S.P.'s application for an award of costs against the Director was reserved to be spoken to on another day should Counsel for S.P. wish to pursue that application in light of my decision and these Reasons.

• N.A. FLATTERS
  Judge, The Provincial Court of Alberta, Fam. Div.