JS v Alberta, 2017 ABQB 231

Court of Queen’s Bench of Alberta Citation: JS v Alberta, 2017 ABQB 231 Date: 20170330 Docket: 1303 05165 Registry: Edmonton Between: JS and MK and the Estate of DS as represented by JS Plaintiffs - and - Her Majesty the Queen in Right of Alberta, The Minister of Children and Youth Services as represented by Yvonne Fritz, The Director of Child and Youth Services as represented by Carole Anne Patenaude CEO, Edmonton & Area Child & Family Services Region 6, ____, Gloria Mapplebeck, Brandy Gilbertson, Deena Fairlie, Ellen Herle, The Attorney General of Canada as represented by the Royal Canadian Mounted Police, Constable Bryan Brooks, Doctor Samina Ali and Michelle Hirsekorn Defendants Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2 . No one may publish the name or photograph of a child, or of the child's parent or guardian, in a way that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the identification ban. Editorial Notice: The unofficial electronic version of the judgment was revised to remove the first name of the child now identified as DS. _______________________________________________________ Reasons for Decision of L.A.

Smart , Master in Chambers _______________________________________________________ Background [ 1 ] The Plaintiff DS was approximately four months old and resided with her mother, the Plaintiff JS. MK is JS’s mother and D’s grandmother. On April 5, 2011, the Defendant Constable Brian Brooks received a request from Child and Family Services (CFS) to

attend with the Defendant Gloria Mapplebeck and Brandy Gilbertson, employees of CFS, at the residence of JS for a premise check. Cst.Brooks was a member of the RCMP Detachment in Breton, Alberta and he states that the purpose of his attendance was to keep thepeace. [2] Cst. Brooks states that during the premise check, JS became agitated with the CFS employees and that he intervened in anattempt to de-escalate the situation. He states that subsequently, the CFS employees decided to either apprehend D or continue theirassessment at the CFS office in Leduc. Cst.

Brooks also states it was agreed by JS and the CFS employees that D would be transported tothe CFS office and that JS and MK would meet them there. Cst. Brooks did not attend at the CFS office and his involvement ended upondeparture from the premise. [3] JS swears that Cst. Brooks and the CFS employees decided to apprehend D without an Apprehension Order. She states thatCst. Brooks informed her that if she did not cooperate that he would take her into custody and her daughter would be apprehendedregardless. It is clear that D at some point in time on April 5, 2011 was taken into the custody of CFS.

Sadly on April 11, 2011while inthe custody of CFS D passed away. [4] Although the CFS employees and the other “Alberta Defendants” have defended they have filed no evidence nor are theyrequired to for this application. The Claim against Brooks and the RCMP [5] The allegation against Cst. Brooks is that he together with the CFS employees took D from her home in breach of s 19 of theChild, Youth and Family Enhancement Act, RSA 2000 c C-12 and was grossly negligent.

They are also alleged to have been in breach ofsections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms and are thus further grossly negligent. Finally, it is alleged theywere in breach of

section 8 of the Charter when they entered the plaintiff JS’s home, searched through the house and took pictures of itsinterior. Such gross negligence and breaches are alleged to have caused great damage and emotional stress to the Plaintiffs. [6] Cst. Brooks and the Attorney General of Canada as represented by the RCMP (the Federal Defendants) apply for

summaryjudgment dismissing the action as against them. Briefly, the test for

summary judgment is whether I am able to make a fair and justdetermination on the record before me (Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108). Limitations Act [7] This action was commenced on April 10, 2013. The Federal Defendants’ involvement was on April 5, 2011. On its face,more than two years had passed and the action would be barred under s 3(1) of the Limitations Act, RSA 2000, c L-12. The affidavits ofJS and MK say they were grieving and in shock preventing them from seeking immediate legal advice. JS says she first consulted alawyer in the middle of May, 2011.

Based on the objective-subjective analysis set out in Novak v Bond, (SCC), [1999]1 SCR 808 and the facts before me, I am unable to conclude that a reasonable person in this situation could bring an action before theydid. Apprehension [8] The Alberta Defendants plead in their defence that the apprehension of D occurred at the CFS office. That is not evidence.As noted above, Cst. Brooks says Mapplebeck and Gilbertson decided to either apprehend D or to continue their assessment at the CFSoffice in Leduc. Cst. Brooks attached as exhibits to his affidavit his notes and his occurrence report.

The notes have a number of itemsredacted without explanation. The report starts with Occurrence details which contains the following:

Summary: Cst BROOKS received a call to assist Leduc Child Services in regards to a child welfare check at the residence of [JS]. Cst.BROOKS attended and mediated as Child Services advised the children would be apprehended. Children were taken with no incidentand family attending with Child Services to Leduc. File closed with Child Services. NFAR/Cleared beyond control of department. VSUnot offered N/APPL. File concluded with Child Services. Cst. BROOKS. [9] It also contains a General Report containing: Narrative: 2011-04-05 09:00 Cst. BROOKS received a call from Gloria of Leduc Child and Family Services.

She is requesting assistance in a welfare check on thechildren located at the [LB/JS] residence outside of Warburg. Cst. BROOKS had been briefed by Cst. STEAD who had tried to assist theprevious day but nobody was home. Cst. BROOKS advised he would assist and meet the workers near the residence. 09:32 Cst. BROOKS attended the residence of [JS] and [LB]. Two children were on scene. [EB] and D[S]. Child Services questioned the adultsand inspected the residence. Gloria determined after speaking with her supervisor that both children as well as the 14 year old child, [Z]who was at school are to apprehended.

Mrs. [LB] wished for the help as she has been abused in the past and requested help in getting herlife in order. Mrs. [JS] was not compliant and only after Cst. BROOKS de-escalated the situation did she agree to comply and work with

CHILD SERVICES. 11:22 Cst. BROOKS left the residence after concluding his involvement with Child Services. Mrs. [JS]’s parents attended and would followChild Services to Leduc with Mrs. [LB]. The children were in the Child Services vehicle. [Z] would be picked up at a later time. Cst.BROOKS left a card with Mrs. [JS] to follow up if she should so choose. [10] The

Summary and General Report on their face contradict the apparent uncertainty over when the decision to apprehend wasmade. Regardless, Cst. Brooks says that he mediated or de-escalated the situation. J] and MK say JS was threatened with arrest if she didnot agree that D be transported to Leduc. Although Cst. Brooks, based on the evidence, appears to have collaterally participated in theapprehension of D, he did not apprehend her per se. Negligence [11] Part of the claim against the Federal Defendants is framed as gross negligence. Assuming (but not deciding) Cst.

Brooks tookpart in an allegedly wrongful apprehension of D, the issue, in my view, comes down to whether the damage was in law caused by hisbreach, or whether it is too remote to warrant recovery (See Mustapha v Culligan of Canada Ltd, 2008 SCC 27 at para 11). Firstly, it isnoted that once D was removed from the premises by the CFS employees, Cst. Brooks played no role in or even had knowledge of thesubsequent events including her placement in the care of a foster parent. To find that Cst.

Brooks should have reasonably foreseen thatonce D was taken into custody by CFS that the care and treatment she would receive would result in her death is simply too remote. Charter [12] In Mackin at para 79, 2002 SCC 13 , [2002] 1 SCR 405, the majority of the Supreme Court of Canada held that: [S]ince the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability.

Intheory, a plaintiff could seek compensatory and punitive damages by way of “appropriate and just” remedy under s. 24(1) of the Charter.The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rightsand the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate andjust in the circumstances.

Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context.Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established andindisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their powerunder prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, theeffectiveness and efficiency of government action would be excessively constrained.

Laws must be given their full force and effect aslong as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power thatdamages may be awarded. [13] The remedy available pursuant to s 24(1) of the Charter may include constitutional or public law damages.

An action forpublic law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] publiclaw action directly against the state for which the state is primarily liable”: Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28 atpara 22. [14] The Supreme Court of Canada also indicated in Ward at para 22 that: The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual’sconstitutional rights.

An action for public law damages — including constitutional damages — lies against the state and not againstindividual actors. Actions against individual actors should be pursued in accordance with existing causes of action. [15] In Henry v British Columbia (Attorney General), 2015 SCC 24 at paras 35 & 36, the majority of the Court stated: 35 Charter damages are a powerful tool that can provide a meaningful response to rights violations. They also represent an evolving areaof the law that must be allowed to "develop incrementally": Ward, at para. 21.

When defining the circumstances in which a Charterdamages award would be appropriate and just, courts must therefore be careful not to stifle the emergence and development of thisimportant remedy. 36 However, Charter damages are not a silver bullet. They are just one of many remedies that may be available to individuals whoseCharter rights have been breached, and their availability is not without limit. In Ward, the Chief Justice outlined a four-step frameworkto determine the state's liability for Charter damages: The first step in the inquiry is to establish that a Charter right has been breached.

The second step is to show why damages are a just andappropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of theright, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailingfactors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.

The final step is toassess the quantum of the damages. [para. 4] [16] The Plaintiffs have made claims for damages against the Defendants under s 24 of the Charter for alleged breaches of s 7–9and 12. The above authorities make it clear that there can be no claim under s 24 against Cst. Brooks but only as against the “state”. With

regard to the complaint under s 8, there is no evidence to support that there was an unlawful search and what evidence there is that could be said to collaterally touch upon this issue supports an opposite conclusion. [ 17 ] Central to this matter is the alleged unlawful apprehension of D. Assuming the apprehension was unlawful, there is nothing pleaded nor any evidence that D was impacted in some way by the apprehension per se . Indeed, noting her age it is doubtful that she would even be aware of what occurred.

In light of these facts I am satisfied that an award of Charter damages against the Attorney General of Canada in favour of the estate of D would not be appropriate in the circumstances. Parenthetically, although not raised by counsel, I note that s 5 of the Survival of Actions Act , RSA 200 c S-27 would very likely preclude such a claim regardless. [ 18 ] MK says she observed D being apprehended and Cst. Brooks threatening JS that he would arrest her if she did not cooperate.

I am mindful that Charter damages is an evolving area of law and the courts must be careful not to stifle the emergence and development of this remedy. MK claims damages arising from her observation of the alleged Charter violations suffered by D or JS. An award of Charter damages to someone other than the party whose Charter rights have been breached is in my view beyond the scope of s 24. [ 19 ] With respect to JS, the issue is less clear. There is conflicting evidence on when D’s apprehension occurred.

There is a dearth of evidence as to what actually transpired during the approximately two-hour time frame that Cst. Brooks, Mapplebeck and Gilbertson were on the premise. No particulars of the events leading up to the need for mediation or de-escalation are described. There is no evidence as to the condition of the premise or the state of the child. It is impossible to determine what gave rise to the need to remove D to the CFS offices in Leduc whether by way of an apprehension or for further assessment.

Assuming the threat of arrest occurred, there is nothing to establish a legal basis for taking that action nor whether it constituted an appropriate or necessary exercise of power conducted in good faith. Conclusion [ 20 ] Based on the foregoing I am satisfied there is no genuine issue requiring a trial of the claims against Cst. Brooks, and accordingly I dismiss the action as against him in its entirety. The claims of JS pursuant to s 24 of the Charter as against The Attorney General of Canada as represented by the RCMP for alleged breaches of s 7, 9 and 12 may proceed.

All other claims of the Plaintiffs as against The Attorney General of Canada as represented by the RCMP are dismissed. Under the circumstances I am of the view that it is appropriate for each of the parties to bear their own costs of this application. Dated at the City of Edmonton, Alberta this 30 th day of March, 2017. L.A. Smart M.C.Q.B.A. Appearances: David Stam Department of Justice Canada for the Defendants/Applicants Bale Rivers McConnell & Company for the Plaintiffs/Respondents