MINISTER OF JUSTICE v. ATTORNEY GENERAL OF BRITISH COLUMBIA, 2019 BCPC 379

Citation: J.R.A. v. British Columbia (Attorney General) and British Columbia (Child, Family and Community Service) 2019 BCPC 379 Date: 20190618 File No: 1649990 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: A.R.C. , born [omitted for publication] T.R.P., born [omitted for publication] BETWEEN: MINISTER OF JUSTICE and ATTORNEY GENERAL OF BRITISH COLUMBIA APPLICANT AND: J.R.A.

RESPONDENT AND: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Attorney General: K. Chewka Counsel for J.R.A.: P. Leblanc Counsel for Director of Child, Family and Community Service : No one appeared Place of Hearing: Prince George , B.C.

Dates of Hearing: May 28 and July 17, 2018 Date of Judgment: June 18, 2019 [ 1 ] The Applicant, J.R.A., has applied to the Court for a declaration that certain provisions of the CFCSA are unconstitutional, and alternatively that that the Director’s actions taken on the authority of those provisions of the CFCSA infringed J.R.A.’s Charter rights, and in either case, seeks a remedy for that infringement under Section 24(1) of the Charter of Rights and Freedoms , specifically, for

damages and costs. [2] The motion before me is brought by the Attorney General of British Columbia, for dismissal of the application on the basis thatthe Provincial Court of British Columbia does not have jurisdiction to make such a declaration or grant such a remedy. [3] The determination I must make is simply whether the Provincial Court has jurisdiction to grant J.R.A.’s application. If this Courtdoes not have jurisdiction to grant the remedies sought, then J.R.A. must make her application to Supreme Court. Factual background: [4] J.R.A. is the mother of two children.

The children were removed from J.R.A. and her spouse T.P. in September 2016, after anincident of serious domestic violence between the parents. Orders were obtained placing the children in the interim custody of theDirector. The parents were granted access. In January 2017, J.R.A. was granted overnight access. The overnight access was extended toinclude several days.

Between February 6 and 20, 2017, the children resided with the parents on an extended access visit. [5] Pursuant to s.22 of the CFCSA, the parents and the Director entered into a mediated agreement on February 8, 2017, pursuant towhich the Director agreed to seek, at a court appearance fixed for later that month, a return of the children to the parents undersupervision. However, on February 20, 2017, the Director ended the extended access visit, on the basis of concerns that the parents werenot addressing their alcohol abuse issues.

The children were taken from their parents care, placed in foster care for a few days, and thenplaced with their maternal grandmother in [omitted for publication], some 400 km away. They have resided with their grandmother sincethen. [6] J.R.A. says that she and her partner and the children were traumatised when the Director took the children away from theextended access visit on February 20, 2017. After the children were taken away, the parents relapsed into substance abuse. T.P. died of adrug overdose in 2017. J.R.A. continues to struggle.

J.R.A. has since consented to an order under s. 54.01 of the CFCSA under which thechildren were transferred to the permanent custody of their maternal grandmother. [7] J.R.A. is and has been at all material times, an indigent person who has met her living expenses through social assistance.Although she has been allocated funding for counsel to represent her in CFCSA proceedings in Provincial Court, I am informed by hercounsel that the Legal Services society will not provide funding for legal counsel to represent her in Supreme Court to seek remediesunder s. 52 of the Constitution Act 1982.

Summary of J.R.A.’s application: [8] J.R.A. argues that the Director breached the terms of the mediated agreement by taking the children away and not consenting toan order returning the children to her under supervision (as provided in the mediated agreement). J.R.A. points out that the CFCSA doesnot contain any provisions for remedies if the Director breaches its obligations under a mediated agreement. [9] If the Director has custody of a child under an interim or temporary custody order, then under s. 47 of the CFCSA, the Directorhas the rights and responsibilities of a guardian.

It was pursuant to its rights and responsibilities under s.47 that the Director took thechildren away from J.R.A. during the extended access visit.

Section 47 does not include provisions requiring the Director to inform theparent of its reasons or permit the parent an opportunity to respond, nor to promptly place the matter before the court when the Directorends an extended access visit by taking the children away from the care of the parent, unlike the situation when the Director removes achild from a parent initially.

J.R.A. therefore argues that the both s.22 and s.47 are unconstitutional because they do not includeprocedural provisions which are necessary to protect her right to security of the person under the Charter. [10] Further, J.R.A. argues that acting pursuant to these unconstitutional provisions, the Directors infringed J.R.A.’s right to securityof the person under the Charter. She seeks costs and damages as her remedy for that infringement of her Charter rights, pursuant to s.24(1) of the Charter. [11] Although J.R.A. acknowledges that pursuant to

Section 52 of the Constitution Act 1982, the Provincial Court does not havejurisdiction to make a formal declaration that s.22 and s.47 of the CFCSA are unconstitutional, she argues that his court can make aninformal declaration of invalidity in order to resolve an issue that is within the jurisdiction of the court, on the authority of R. v. Lloyd2016 SCC 13 , [2016] 1SCR 130.

She argues that the Provincial Court can make an informal declaration of invalidity of s. 22and s.47 in order to resolve her claim for costs and damages under s. 24(1) of the Charter. [12] Alternatively, J.R.A. argues that if s.22 and s.47 do not infringe the Charter, then the manner in which the Directors acted (inending J.R.A.’s extended access visit, resiling from the mediated agreement and transferring the children to her mother in another townfar away) infringed her Charter rights, for which she is entitled to a remedy of costs and damages under s.24(1) of the Charter.

The Attorney General’s argument: [13] Firstly, the Attorney General argues that the Provincial Court has no jurisdiction to make a declaration that any particular pieceof legislation is unconstitutional; an application for such a declaration must be made to the Supreme Court. Secondly, the attorneygeneral argues that Lloyd applies only to those cases properly before the Provincial Court, in which an informal determination ofunconstitutionality is necessary in order to make a determination of the case at bar. The Attorney General says this is not one of thosecases.

However, even if the Court made such a determination, the court may simply decline to apply the impugned legislation, or mayread it down to the point at which it passes constitutional scrutiny, but no remedies under s. 24(1) are available for a declaration ofinvalidity.

Section 24(1) is engaged only to address Charter infringing actions by State actors acting under legislative schemes whoseconstitutionality is not challenged. [14] The Attorney General further argues that if J.R.A. alternatively pursues her claim for damages and costs under s.24(1) of theCharter, on the basis that s.22 and s.47 of the CFSCA are valid legislation, but the manner in which the Director acted (in taking thechildren away and resiling from the mediated agreement without consulting her and without placing the matter before the court)

infringed her Charter rights, then The Crown Proceeding Act, Sections 5(2) and (4)(

a) and (

b) precludes J.R.A. from seeking Charterrelief costs and damages against the government in Provincial Court. [15] The Attorney General initially also argued that J.R.A.’s argument that the Directors actions infringed her Charter rights wouldonly succeed if the Court were to read into the CFCSA a requirement for procedural protections which do not exist; the Attorney Generalargued this was really just a disguised attack on the constitutionality of the impugned sections, and that there was no prospect of successon that argument.

The Attorney General abandoned that argument during submissions, confining itself to the assertion that ProvincialCourt has no jurisdiction to grant the remedies sought. Discussion: 1. Can the Provincial Court make a finding that s.22 and s.47 are unconstitutional in order to grant a remedy of damages and or costsunder s.24(1)? [16] The parties agree that the Provincial Court does not have jurisdiction to declare a piece of legislation unconstitutional.

The onlyway the Provincial Court can make a provisional finding of invalidity is to do so while in the course of making a decision on a matterover which the Provincial Court does have jurisdiction. For example, a Provincial Court might make an informal determination that aparticular piece of mandatory minimum sentence legislation infringed the Charter, and was therefore invalid, in order to impose a fitsentence on an offender before the Court for a particular offence.

Another example might be that a Provincial Court, hearing an impaireddriving trial, might be required to make an informal determination of whether a piece of impaired driving legislation infringed theCharter, in order to decide whether the accused was guilty of the offence as charged. [17] The problem with the application of Lloyd to the case at bar is that any decisions to be made by the Provincial Court in thisproceeding are, under the CFCSA, necessarily about the protection and care of the children; but there is no decision regarding the careand protection of the children to be made by the court in a CFCSA proceeding which depends upon a determination of whether thesesections of the CFCSA impugn the Charter.

It is not necessary to decide whether s.22 or s.47 infringe the Charter in order to decidewhat plan of care is in the best interest of the children; indeed, in this case those decisions have already been made and there is reallynothing more to do – the children have been transferred to the permanent custody of their grandmother, with the consent of J.R.A.. Evenif that event had not already occurred, the jurisdiction of the Court under the CFCSA would still be to determine the best interest of thechildren, taking into consideration the needs of the children and J.R.A.’s ability to meet those needs.

Whether J.R.A.’s Charter rightshave been infringed or not has nothing to do with that determination. [18] The remedy sought (damages and costs) is dependent on the determination of invalidity; that is, the decision sought (to grantdamages and costs under s.24(1) of the Charter) is derived solely from declaration of invalidity.

Essentially, in order to apply Lloyd tothe case at bar, the Court would have to make a decision to grant a remedy which (if it could be granted at all) could only be granted ifthe court determines that the legislation is unconstitutional, and which is to be granted to compensate the applicant for the fact that thelegislation is unconstitutional. The reasoning is circular.

Thus, I find, Lloyd has no application to this case. [19] Accordingly, I find that the Provincial Court has no jurisdiction to provisionally declare the impugned sections of the CFCSA tobe invalid in order grant a remedy of Costs and damages to J.R.A. under s. 24(1) of the Charter. [20] The Attorney General also argued that, in those cases in which the Supreme Court has declared legislation to be invalid unders.52 or in which the Provincial Court has applied Lloyd to provisionally declare legislation unconstitutional, the result is simply that thelegislation is invalid and no remedy in damages flows from that J.R.A. argues that a remedy of costs and damages could result inappropriate cases.

The Attorney General argues that this Court can and should make the determination of whether s.24 (1) could possiblyprovide a vehicle for a remedy for J.R.A. in the event that the impugned legislation were found to infringe the Charter. In my view, thatquestion is not for me to decide, considering my decision that Lloyd cannot be applied to the case at bar in order to confer jurisdictionupon me to make the provisional declaration of invalidity in the first place. I find that question should be determined by a court ofcompetent jurisdiction – which is Supreme Court, not Provincial Court. 2.

Assuming (without deciding) that s.22 and s.47 of the CFCSA are valid legislation, and that the actions of the Director, taken pursuantto s.22 and s.27 infringed J.R.A.’s rights under the Charter, does the Provincial Court have jurisdiction to grant a remedy under s. 24(1)of the Charter, specifically Costs and damages? [21] J.R.A. argues that Charter damages have been ordered in appropriate cases, and that Costs could also be ordered in appropriatecases. In Vancouver v.

Ward 20120 SCC 27 , the Supreme Court of Canada held that in some cases, damages imposed pursuantto s. 24(1) may be an appropriate remedy where damages would serve the function of compensation, vindication of the Charter rightinfringed, and/ or deterrence of future breaches. In that case, Mr Ward had been arrested and strip searched in a case of mistaken identityarising out of information that a person of somewhat similar description was intending to throw a pie at the Prime Minister.

Mr Wardbrought an action in Supreme Court in Tort and for breach of his Charter rights against the police officers and the City of Vancouver. MrJustice Tysoe of the BC Supreme Court, dismissed the claim in tort but made an order for damages in the amount of $5000 for breach ofMr Ward’s Charter rights. The Supreme Court of Canada upheld that order. [22] The Attorney General conceded that it was at least arguable that J.R.A. might be able to make a claim for damages, in a court ofcompetent jurisdiction.

However, the Attorney General argues that the Provincial Court has no such jurisdiction, because an applicationfor Charter relief against the government is specifically excluded from the jurisdiction of the Provincial Court by the Crown ProceedingAct, RSBC 1996

Chapter 89: Institution of claims in the Supreme Court 4

(1) Subject to this Act, all proceedings against the government in the Supreme Court must be instituted and proceeded with underthe Supreme Court Act and, if applicable, under the Class Proceedings Act.

(2) In proceedings against the government, the trial must be without a jury.

Institution of claims in the Provincial Court 5

(1) Without limiting

section 4 but subject to subsections (3) and (4) of this section, proceedings may be brought against thegovernment in the Provincial Court.

(2) Subject to this Act, all proceedings against the government in the Provincial Court must be instituted and proceeded with underthe Small Claims Act.

(3) Nothing in this Act extends the jurisdiction of the Provincial Court beyond the jurisdiction available to it under

section 3 of the SmallClaims Act.

(4) In a proceeding against the government under the Small Claims Act, the Provincial Court does not have jurisdiction over (

a) a matter for which notice under

section 8 of the Constitutional Question Act is required, or (

b) a matter involving the Canadian Charter of Rights and Freedoms. [23] J.R.A. argues that to preclude her Charter claim from being heard in Provincial Court effectively precludes her from being heardat all, as the Legal Services Society does not provide funding for her to have counsel in both Provincial Court and Supreme Court. [24] While I am sympathetic to J.R.A.’s plight, the Provincial Court is a Court of Statute. The Crown Proceeding Act expresslyexcludes from Provincial Court jurisdiction any claim for Charter relief against the Government.

Clearly Charter damages have beenawarded in appropriate cases, like Ward, but such cases have always been heard in Supreme Court.

The parties concede that they wereunable to find any cases in Provincial Court in which Charter damages were awarded against the government- presumably because theCrown Proceeding Act precludes any such claim. [25] J.R.A. argues that even if the Crown Proceeding Act might preclude a claim for damages, it does not preclude a claim for Costs.J.R.A. points to R. v. 974649 Ontario Inc. 2001 SCC 81 , [2001] 3SCR 575 (“Dunedin”) to support her contention that theProvincial Court does have the jurisdiction to order costs.

In that case a Justice of the Peace in Ontario ordered costs against the Crownfor its refusal to disclose certain documents to the accused in the course of the prosecution of the accused. The Supreme Court of Canadaheld that the Offences Court in that case did have jurisdiction to make an award of costs as a Charter remedy where the issue aroseincidental to the process that the Court was suited to resolve.

In that case, the order of costs against the Crown was made in order tocompensate the accused for the costs of the disclosure application brought by the accused resulting from its refusal to provide disclosureas required for the proper conduct of the litigation. [26] Similarly, in Director v. L. 2009 BCPC 293 , 2009 BCPC 0293, Judge Skilnick ordered that the government pay the‘costs’ of the lawyer for the parents in the conduct of their CFCSA matter because otherwise they would not have legal representation inthe litigation.

At paragraph 8 of his decision, he said [8] I agree with the analysis suggested by counsel that this court is a court of competent jurisdiction within the meaning of section 24(1)of the Charter when it comes to the granting of the remedy of appoint counsel for indigent parents whose children are the subject ofCCO applications. I come to that conclusion for the following reasons: (

a) the CFCSA is a statute in which the legislature has declared “must be interpreted and administered so that the safety and well-beingof children are paramount concerns”, with the principle that “decisions relating to children should be made and implemented in a timelymanner; (

b) requiring parents in this situation to apply to the superior court would, in the words of Chief Justice McLachlan, “fracture theavailability of charter remedies” and result in an impediment of their access to justice; (

c) provincial courts had been found to have jurisdiction at the trial level in criminal proceedings on the basis that, as the court of firstinstance, statutory criminal courts require, and are suited to provide “an expansive remedial jurisdiction. Similar considerations apply tothis court’s role in applications under the CFCSA. [27] Judge Skilnick’s decision was appealed to the BC Supreme Court on the issue of indigence, (not jurisdiction), where it wasupheld.

I note, however, that Judge Skilnick framed his discussion and analysis narrowly; that is, his order for ‘costs’ was to cover thecost of appointing counsel to assist the parents in the conduct of the child protection litigation which was under way at the time. In myview it is a misnomer to use the word ‘costs’ to describe Judge Skilnick’s order. It was a prospective order, to cover legal expenses madein order to ensure the parents’ ability to conduct the litigation in the best interest of the children. Such an order is unnecessary in thiscase.

There is no suggestion that the Legal Services Society ever denied counsel to J.R.A. throughout the Director’s case regarding thechildren. Judge Skilnick was not entertaining an application for costs against the government arising from a claim for Charter damages. [28] J.R.A. also points to an award of costs made against a social welfare agency for failing to comply with their statutory obligationsregarding timely disclosure in NCNFCS & ANCR v. KB 2018 MBCA 1.

I note, however, that this case was heard and decided in the courtof Queens Bench (not Provincial Court) and costs were awarded specifically for failure to comply with specific statutorily mandatedtimelines which affected the father’s ability to conduct the litigation involving the children – which is not the case here.

J.R.A.’s claim isthat the fact that the Director interrupted the access visit violated her Charter rights, but she does not argue that it affected her ability toproceed in the litigation regarding her children. [29] The other cases relied on by J.R.A. took for granted that the Court can order costs as a Charter remedy, but those casescontemplated such measures as part of the Courts ability to control its own process during a trial over which it has jurisdiction; thus, in R.v.

Booth, 2002 BCPC 119, Lenahan, J. found he did not have jurisdiction to deal with a claim for Charter costs and damages because hewas not the trial judge; in R. v. Diep, 2007 BCPC 78, Hicks, J. ordered costs against the Crown for late disclosure in the course of thetrial before him; in R. v. J.A.L.,2009 BCPC 143 , 2009 BCPC 0143, Brecknell, J. ordered costs against the Crown for material

nondisclosure which resulted in delays and rearrangements of the trial ongoing before him. In none of those cases was the Crown Proceeding Act considered by the Court. [ 30 ] In each of the cases relied on by J.R.A., where costs have been ordered in Provincial Court, the costs were ordered as part of the right and obligation of a trial court to control its own processes, specifically the conduct of the trials under way before it.

The costs in each case were ordered to rebuke improper conduct within the litigation itself, which resulted in additional time and expense to the applicant, and to thus compensate the applicant for legal fees expended unnecessarily; in the other CFCSA cases, the “costs” ordered were for legal representation to be paid for in the future to enable parents to be properly represented in the CFCSA proceedings underway.

In every case, the award of costs has to do with the cost of legal representation, specifically legal fees and expenses which would not have been expended but for the impugned behaviour, within the conduct of the litigation, on the part of the Crown, or in order to obtain legal representation for the conduct of the litigation. [ 31 ] J.R.A. argues that costs will serve to hold the state accountable for its misconduct in failing to adhere to mediated agreements. However, she has not specified how she was put to additional legal costs as a result of state conduct.

Given that she has been provided legal representation by the Legal Services Society throughout the conduct of the child protection litigation, she could have made application, in the course of that proceeding, under s.55 for access, or under s.93.1 for a review of the director’s actions, with the assistance of her state funded counsel, but she did not.

Since her actual legal costs incurred have been covered by the Legal Services Society, it appears to me that in seeking costs “to hold the Director accountable,” she is actually seeking damages, for the very same conduct for which she is seeking damages. [ 32 ] However, if she is seeking costs, (as in, to cover legal expenses not already covered by the LSS retainer) I assume the costs she is seeking are those associated with pursuing her claim for damages for the alleged breach of her Charter rights.

That application has nothing to do with the course of the CFCSA litigation involving her children; J.R.A. does not seek a different outcome in the child protection proceedings. Rather, her application stands outside the child protection issues that were the subject of the litigation and instead attacks the legislation enabling the Director’s behaviour or the Director’s behaviour in acting under its enabling legislation.

If she wishes to obtain an order for future legal representation unavailable through the Legal Services Society, she can make an application for that representation – but that is not the application before me. [ 33 ] Further, since I have already found that, according to the Crown Proceeding Act , the Provincial Court has no jurisdiction to hear her claim for Charter damages, I fail to see how the Provincial Court would have jurisdiction to award costs for the pursuit of such a claim.

In any event, J.R.A.’s claims for both costs and for damages are framed as a remedies for the breach of her Charter rights, so in my view, her claim cannot be anything other than “a matter involving the Canadian Charter of Rights and Freedoms .” Thus, I find the Crown Proceeding Act is squarely engaged with respect to J.R.A.’s application. [ 34 ] J.R.A. argues that, if the Crown Proceeding Act excludes jurisdiction from Provincial Court to hear her application for Charter relief, she is effectively precluded from seeking such relief at all.

As an indigenous woman who lives in poverty, she is among the most disadvantaged of Canadian citizens. She argues that indigenous women are disproportionately subjected to Child Protection proceedings. She argues that she is incapable of making an application to any Court without legal representation. Since the Legal Services Society does not fund proceedings in both Provincial Court and Supreme Court, she argues that she, and other indigenous women like her, are effectively precluded from applying to Supreme Court.

J.R.A. therefore asks this court to find that the Crown Proceeding Act is contrary to the Charter precisely because it denies access to Charter relief in Provincial Court and asks me to decline to apply it. For the reasons given earlier, I find I do not have jurisdiction to declare those sections of the Crown Proceeding Act to be invalid, provisionally or otherwise. [ 35 ] For the reasons stated above, I find that the Provincial Court has no jurisdiction to hear J.R.A.’s Claim for Charter relief.

If she wishes to seek such relief, she will have to apply for such relief in Supreme Court. _____________________________ The Honourable Judge S. K. Keyes Province of British Columbia