The British Columbia government has a year to fix its child protection laws after an Appeal Court panel found the legislation unreasonably gave social workers power to access parentsB次元官网网址� highly sensitive medical information.
The B.C. Court of Appeal struck down a section of B.C.B次元官网网址檚 Child, Family and Community Service Act, finding it allowed social workers to look at a parentB次元官网网址檚 medical records without consent, a search warrant or a court order.
The three-judge panel found part of the act unconstitutional because it lacked safeguards to protect parentsB次元官网网址� deeply personal medical information, violating the CharterB次元官网网址檚 guarantees against unreasonable search and seizure.
The court found the act allowed child welfare workers with the Ministry of Children and Family Development to access a parentB次元官网网址檚 information through public bodies, including hospitals and medical clinics.
The section of the act was not B次元官网网址渕inimally intrusiveB次元官网网址� as a lower court found and could give access to B次元官网网址渋ntensely private informationB次元官网网址� that may not have been a necessary part of an investigation, the panel says in its ruling.
Advocacy groups that intervened in the case say the courtB次元官网网址檚 decision is a victory for parents and will force the province to bring in the proper safeguards.
The appellant is a mother of three from Prince George, B.C., who has a history of trauma and mental-health issues.
The ruling cites the writings of Steven Penney, a criminal law professor at the University of Alberta, whose analysis of the B次元官网网址渞easonablenessB次元官网网址� of searches and seizures under the Charter informed the courtB次元官网网址檚 findings.
In a phone interview Tuesday, Penney said the B.C. Court of Appeal found the legislation gave front-line child protection workers access to a subjectB次元官网网址檚 medical information without having to demonstrate if a request for that information was reasonable.
Penney said those working in child protection are doing what they feel is needed during investigations, but the discretionary power to access parentsB次元官网网址� medical information lacked B次元官网网址渃hecks and balances.B次元官网网址�
B次元官网网址淏ut it still gave them sort of this unfettered latitude to obtain potentially highly intimate, highly personal, highly sensitive information without really having to demonstrate that the need for that evidence outweighed the privacy and dignity interests (of) the people to whom the information related, to the parents,B次元官网网址� he said.
Penney said the court had to strike a balance between the stateB次元官网网址檚 interest in protecting children from abuse and the privacy interests of parents.
The broad powers given to child protection workers made the law B次元官网网址渉ighly vulnerable to this kind of challenge,B次元官网网址� he said.
The Appeal Court found the act didnB次元官网网址檛 set out clear rules to access parental medical records, finding state interference with such information could have a chilling effect on parents seeking help and have a negative affect on relationships with health-care providers.
Bety Tesfay, a lawyer with West Coast Legal Education and Action Fund, which intervened in the case, said the ruling is a milestone and B次元官网网址渋mportant victory for parentsB次元官网网址� right to privacy.B次元官网网址�
Tesfay said the child protection system is more akin to a B次元官网网址渇amily policingB次元官网网址� system that regulates, surveils and punishes parents rather than focusing on family well-being, which her organization is pushing for.
A system that recognizes children are better off with their families, Tesfay said, would be more B次元官网网址渃ollaborative and respectful of the dignity and autonomy of (a) parent.B次元官网网址�
She said parents and caregivers from marginalized and vulnerable communities are B次元官网网址渄isproportionately impacted by laws that donB次元官网网址檛 have adequate procedural safe grounds.B次元官网网址�
Maegen Giltrow, a lawyer who acted for the B.C. Civil Liberties Association as another intervener in the case, said the court recognized how problematic the law was.
She said jurisdictions such as Ontario require child protection workers to seek consent or judicial authorization to access sensitive personal information.
B次元官网网址淵ou can still fulfil the important mandate of child protection while having proper safeguards and oversight as opposed to sort of fishing expeditions into peopleB次元官网网址檚 personal records,B次元官网网址� she said.
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