A. J.A. Appellant - v. -, 2011 ABQB 811

Court of Queen ’ s Bench of Alberta Citation: A.J.A. v. Alberta (Child and Family Services, Director), 2011 ABQB 811 Date: 20111222 Docket: FL01 12692 Registry: Calgary Between: A. J.A. Appellant - and - The Director of Child and Family Services Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.L.

Rawlins _______________________________________________________ Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2 . Corrected judgment: A corrigendum was issued on January 19, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

Introduction and Legislation [ 1 ] This matter comes before me as an appeal from an Order of Judge Shaw of the Provincial Court of Alberta. A.J.A. (the “Child”) was confined pursuant to s. 43.1 of the Child, Youth and Family Enhancement Act , RSA 2000, c. C-12 (the “CYFEA”). [ 2 ] The provisions of the CYFEA at issue in this case are these: 43.1(1) Subject to subsection (2), if a child (

a) other than a youth who is the subject of a custody agreement under

section 57.2(2), is in the custody of a director, (

b) is the subject of a supervision order, temporary guardianship order or permanent guardianship agreement or order, or (

c) is the subject of a family enhancement agreement under

section 8, and a director has reasonable and probable grounds to believe that (

d) the child is in a condition presenting an immediate danger to the child or others, (

e) it is necessary to confine the child in order to stabilize and assess the child, and (

f) less intrusive measures are not adequate to sufficiently reduce the danger, the director may issue a secure services certificate in the prescribed form, and on issuing it the director may convey the child, and may detain the child while the child is being conveyed, to a secure services facility and may confine the child in a secure services facility. ...

(3) If a director confines a child pursuant to subsection (1), (

a) the director must appear before the Court within 3 days after the confinement to show cause why the certificate was issued, and (

b) the director may also apply in the prescribed form for a secure services order in respect of the child for a further period of not more than 7 days if it is necessary (

i) to stabilize the child, or (ii) to assess the child and prepare a plan for services in the prescribed form. ...

(4) If a director confines a child pursuant to subsection (1), the director must serve on the child and on the guardian, if the guardian consented to the issuing of the secure services certificate, not more than one day after the certificate is issued (

a) a copy of the secure services certificate showing the reason for confinement and the duration of the certificate, (

b) a notice of the date, time and place at which the appearance to show cause under subsection (3)(

a) will be held, and (

c) an application, if any, for further period of confinement under subsection (3)(b). ...

(5) An application pursuant to subsection (3) may be heard by a judge of the Court, a judge of the Court of Queen’s Bench or a justice of the peace.

...

(7) The judge or justice of the peace that hears an application pursuant to subsection (3) may make a secure services order in respectof a child for a period of not more than 7 days if the judge or justice of the peace is satisfied that a further period of confinement isnecessary (

a) to stabilize the child, or (

b) to assess the child and prepare a plan for services. ... 44.1

(1) A secure services order granted under

section 43.1 or 44 may be renewed in accordance with the application proceduresof

section 44, except subsection 4), on the application by a director in the prescribed form for a period of not more than 20 days.

(2) The total period of confinement of a child in a secure services facility under this

section and sections 43.1 and 44 shall not exceed30 consecutive days. [3] On Wednesday, July 6, 2011, the Director brought an application for a 7 day confinement order for the Child. The Child,who was represented by counsel, consented to the further confinement and Judge Shaw granted the Order. However, there was dispute asto how the 7 day period was to be computed. Counsel for the Child asserted that Judge Shaw erred in failing to include the weekenddays, namely Saturday, July 9, 2011 and Sunday, July 10, 2011, in granting the Order. [4] Two preliminary matters are agreed between the parties.

First, it is not disputed that the Child has been released and that,therefore, this appeal is moot. However, both parties represented that this issue of the computation of time in respect of confinementorders arises frequently and that, therefore, the question should be determined notwithstanding that it is moot in this case. Counsel forthe Director noted as follows in her brief:

a) The time during which a child can be confined is so short, no appeal could effectively be heard in this time frame; and

b) There is a real issue to be determined, as the Court below does not agree on how time should be counted for any secure servicesorders. [5] I am satisfied that this is an appropriate case for this Court to exercise its discretion to address the question despite mootness.In this case, the need for judicial economy is outweighed by the need for clarification; see Borowski v. The Queen, (SCC), [1989] 1 S.C.R. 342. [6] Second, it is common ground that the proper approach to the computation of time for confinement orders is a question of lawand, therefore, the standard of review is correctness.

Positions of the Parties [7] Counsel for the Child argued that a confinement order must include weekends and holidays and that the Provincial Court hasno jurisdiction to extend the period of confinement beyond the 7 days set out in the CYFEA by excluding such days. [8] However, counsel for the Director argued that the necessary authority can be derived from both the

Interpretation Act, RSA2000, c. I-8 and from the decision of this Court in Director of Child Welfare v. Lambert and Lagrange (12 June 1991), Calgary 9001-15120 and 9001-15121 (ABQB). [9] In that case, the director was required to appear before the Court “within 3 days of the confinement” to show cause why theconfinement was necessary. The child in that case was confined on a Friday, the director appeared before the Provincial Court on thefollowing Wednesday and the question was whether the director had appeared out of time. Under the provisions of the

Interpretation Actas it read at that time, Sundays were excluded in counting time and Forsyth J. rejected the argument that the

Interpretation Act did not

apply to the Child Welfare Act . Forsyth J. then noted that, under the provisions of the Alberta Rules of Court in force at that time, Saturdays also were excluded in computing time. He held that both the

Interpretation Act and the Alberta Rules of Court applied, that both Saturdays and Sundays were excluded and that the director had brought his application in time. [ 10 ] Counsel for the Director correctly conceded that Lagrange must be read with some caution, given subsequent changes to the Alberta Rules of Court . In Lagrange , Forsyth J. was able to read the

Interpretation Act and the Rules in conjunction with one another. Counsel for the Director asserted that under the current Alberta Rules of Court , Alta. Reg. 124/2010, that is not possible as Rule 1.8 (

b) excludes part of the

Interpretation Act in respect of the computation of time: 1.8 The

Interpretation Act applies to these rules except ... (b) sections 22(3) to (8) [Computation of time] of the

Interpretation Act , which do not apply to these rules, Analysis and Conclusion [ 11 ] In my view, counsel for the Child has misconstrued the question. In fairness, it appears that there is similar confusion in the Provincial Court. It is inaccurate to think in terms of including or excluding weekends and holidays when granting a confinement order. A 3 or 7 day order runs on consecutive days regardless of weekends or holidays; i.e. , a 7 day order granted on a Monday expires on the following Monday. Properly speaking, what must be considered is when the Director is required to appear in Court.

Therefore, the difficulty arises only if the order expires and the Director is required to appear before the Court on a weekend or a holiday. In either of these cases, the

Interpretation Act governs. [ 12 ] If a child is confined pursuant to s.43.1(1) of the CYFEA, the Director must appear before the Court within 3 days to show cause. If a further 7 day confinement order is granted at that time, the Director may apply to renew that order pursuant to s. 44.1 of the CYFEA. Both of these appearances must be on notice to the child and, if necessary, the child’s guardian. If the date upon which the Director is obliged to appear in Court falls on a Saturday, Sunday or holiday, ss. 22(1) and (2) of the

Interpretation Act provide that he must appear on the next business day following: 22(1) If in an enactment the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.

(2) If in an enactment the time limited for registration or filing or an instrument, or for the doing of anything, expires or falls on a day on which the office or place in which the instrument or thing is required to be registered, filed or done is not open during its regular hours of business, the instrument or thing may be registered, filed or done on the day next following on which the office or place is open. [ 13 ] Further, I conclude that the

Interpretation Act and the Rules of Court can be reconciled in this regard. Notwithstanding that Rule 1.8(

b) excludes the application of ss. 22(3) to (8) of the

Interpretation Act , ss. 22(1) and (2) are not excluded. [ 14 ] Therefore, I conclude, as did Forsyth J. in Lagrange , that when the day on which the Director is to appear in Court falls on a weekend or holiday, the Director may appear on the next Court sitting day. [ 15 ] Ordinarily, of course, this will not be necessary. As counsel for the Director pointed out in oral argument, when an order is granted that expires on a weekday, this situation does not arise. In the case of this Child, for instance, the 7 day confinement order was granted on a Wednesday.

Therefore, if the Director had wished to apply for a further order, he would have to have appeared in Court the following Wednesday and the intervening weekend would have made no difference. It is only when the Director would otherwise be obligated to appear in Court on a weekend or holiday that he must have resort to the

Interpretation Act and the Rules of Court .

[ 16 ] Given this clarification, both parties and the judge should be able to determine when an order expires and when the Director must appear, so there should be no continuing concerns of this kind. [ 17 ] Both parties also made arguments about the purpose and effect of the CYFEA. Counsel for the Child argued that as a confinement order restricts a young person’s liberty, such orders must be precise and the statute authorizing them must be strictly construed.

On the other hand, counsel for the Director argued that the purpose of a confinement order under the CYFEA is to allow the provision of treatment services to young persons whose behaviour poses significant risk to themselves or others. [ 18 ] While both sides make reasonable arguments, I must determine the matter based on the legislation. The

Interpretation Act clearly provides for applications that would otherwise fall on weekends or holidays to be made on the next business day following. While the effect of this in some cases will be to extend a young person’s confinement, that effect must be addressed by the Legislature, not by this Court. It may be that counsel’s arguments about the Child’s liberty engage Charter considerations, but no Charter argument is properly before me in this case. [ 19 ] No submissions as to costs were made by either party, so unless the parties wish to make submissions on that issue, there will be no order as to costs.

Heard on the 1 st day of December, 2011. Dated at the City of Calgary, Alberta this 22 nd day of December, 2011. B. L. Rawlins J.C.Q.B.A. Appearances: Jay C. P. Damen for the Appellant Kim Berlin for the Respondent _______________________________________________________

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice B.L. Rawlins _______________________________________________________ Please note that all references made with regards to the Order of Judge Jordan should read: the Order of Judge Shaw.