Her Majesty the Queen - v. -, 2016 SKPC 173

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2016 SKPC 173 Date: December 16, 2016 Information: 38979914 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - T. A. S. Appearing: Ms. Linh Le For the Crown Ms.

Estelle Hjertaas For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act, or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. DECISION S.D. SCHIEFNER, J [ 1 ] T.A.S. is a young person charged with committing an assault on a youth care worker at a therapeutic group home at which she was residing.

There is also a concomitant allegation before this Court that T.A.S. breached the terms of a youth sentence for failing to keep the peace and be of good behavior arising out of the same incident.

[ 2 ] At the time of the incident, T.A.S. was residing at E[…] in P[…], Saskatchewan (“E[…]”). The complainant is Ms. Laura Long, an employee of E[…]. [ 3 ] At trial, the Crown called Ms. Long and Melissa Preymack, another youth worker at E[…]. T.A.S. testified in her own defence. During her testimony, T.A.S. admitted to kicking, punching and biting Ms. Long during an incident when Ms. Long, Ms. Preymack, and another youth worker were attempting to restrain T.A.S. and return her to E[…].

T.A.S. takes the position that the youth workers had no authority to restrain her and that her actions were in self-defence. [ 4 ] For the reasons that follow, I find that T.A.S. must be acquitted. While I have considerable empathy for Ms. Long and the other youth workers at E[…], who were concerned for T.A.S.’s safety and acting in her best interest, I am not satisfied that they had the authority to restrain her on April 9, 2016. I am satisfied T.A.S. was acting in self-defence and her actions were responsive and, in the circumstances, not unreasonable or disproportionate to the force being applied against her.

THE FACTS [ 5 ] The facts relevant to these proceedings were not in dispute save one matter which I will address later. [ 6 ] The Government of Saskatchewan provides care for children that, for one reason or another, cannot be provided at home. The continuum begins with placement with other family members and continues up to and includes out-of-home care for children at risk at specialized residential care facilities. [ 7 ] E[…] is a therapeutic care facility for vulnerable youth. It is licensed by the Province of Saskatchewan and operated pursuant to The Residential Services Act , SS 1984-95-86, c.R-21.2 .

Children come into the care of E[…] pursuant to the terms of The Child and Family Services Act , SS 1990-91, C-7.2. A condition for operation for E[…] is compliance with the Ministry of Social Services’ Residential Services Manual (December, 2010). This document defines the programs and services available to children in care; sets forth the Ministry’s philosophy, values and beliefs with respect to children in care; and prescribes guidelines and policies for dealing with children in care, including how caregivers are to respond to critical incidents, such as self-harm and suicidal behavior. Both Ms. Long and Ms.

Preymack received training regarding these policies while at E[…] and testified that E[…] adhered to these policies in dealing with children residing at their facility. [ 8 ] T.A.S. is seventeen (17) years old now but she was only sixteen (16) at the time of the alleged offense. She came into the care of the Ministry of Social Services in January of 2016. Her experiences before coming to E[…] are sad and troubling. She ran into conflict with her mother over the use of drugs and stealing. T.A.S. then went to live with her father and was sexually assaulted. She engaged in self-harm and repeatedly cut herself.

While at E[…], T.A.S. began working with a counselor whom she liked (Chelsey Bear). She was also able to talk to some of the youth workers, including Ms. Preymack, about her experiences and periodic feelings of sadness. T.A.S. testified that, while at E[…], she did not cut herself or otherwise engage in self-harm. On the other hand, both Ms. Long and Ms.

Preymack described T.A.S. as a “runner”, indicating that she routinely left E[…] without authorization; sometimes not returning for a significant period of time (i.e.: until the next day). [ 9 ] During her testimony, T.A.S. admitted to leaving E[…] without permission; sometimes for a day or two. T.A.S. indicated that she would normally stay at her mom’s or at her sister’s and confirmed that she did so once or twice. Ms. Long and Ms. Preymack described the number of absences by T.A.S. as much higher. For example, in the six months that she was at E[…], Ms.

Long testified that T.A.S. had approximately 45 recorded absences; approximately 15 where she left and returned the same day; and approximately 30 where she left and returned the next day or some time later. Little turns on the number of times that T.A.S. left E[…] without permission. [ 10 ] On April 9, 2016, the youth at E[…] went on a planned recreational outing to a local bowling facility. They left early in the day. Both Ms. Long and Ms. Preymack were on duty that day and were supervising the youth.

Other residents from other youth facilities were also present at the bowling alley. [ 11 ] T.A.S. recognized a youth from another facility and began talking with him. In the romantic setting of the bowling alley, attraction blossomed and talking turned into kissing. Fraternization in that form is a breach of E[…]’s policies. As a result, T.A.S.’s actions brought the entire group’s outing at the bowling alley to an end. Ms. Long informed T.A.S. that her actions were inappropriate and told all of the youth from E[…] that they would be returning to the facility.

[ 12 ] When the group arrived back at E[…], T.A.S. didn’t want to go inside; instead she wanted to go for a walk. She was agitated. Ms. Long knew that she was the “trigger” for T.A.S.’s agitation and allowed other staff to work with her. T.A.S. started walking away and none of the staff tried to physically restrain her. Rather, Ms. Preymack merely followed T.A.S. as she left E[…] and tried to talk to her. It soon became apparent that T.A.S. was heading to her sister’s place, which was not far from E[…]. T.A.S. stayed long enough to have a smoke with her sister and then agreed to return to E[…] with Ms.

Preymack. [ 13 ] When they returned to E[…] in P[…], T.A.S. went to her room but was still agitated. She was angry at Ms. Long and was displaying her anger by throwing things in her room. T.A.S. wanted to be left alone and closed her door. However, because of her state of agitation, staff wanted to be able to see her in her room and, thus, they opened her door. This frustrated T.A.S. because she wanted to be left alone. She again tried to close her door and staff again opened it and asked her to keep it open. The cycle repeated. [ 14 ] Ms.

Preymack testified that, at this point, T.A.S. was very agitated; that, during her state of agitation, she said “ she wanted to die ”; and that she repeated those words more than once. Ms. Preymack testified that, upon hearing words indicating the potential for self- harm, her response to T.A.S. changed. Ms. Preymack told other staff about what she had said. [ 15 ] About that same time, T.A.S. abruptly announced she was leaving and began heading for the back door. Both Ms. Long and Ms. Preymack testified that, because T.A.S. expressed suicidal ideation, they did not want her to leave E[…].

They both expressed fear that, if T.A.S. left, she might harm herself. [ 16 ] T.A.S.’s description of what happened up to this point was very similar to that described by both Ms. Long and Ms. Preymack. She admitted to wanting to leave; she admitted to telling the staff she was leaving; and to using profanity in doing so. She also admitted that, the second time she wanted to leave, the staff clearly did not want her to go. However, T.A.S. denied that she said “she wanted to die” or anything to that effect. Having heard the evidence, I am satisfied that T.A.S. did express words indicative of self-harm.

The evidence of both Ms. Long and Ms. Preymack was clear, compelling and it was corroborated by the clear change in the staff’s response to T.A.S. wanting to leave the second time. In light of the abrupt change in the staff’s response to T.A.S., it is apparent that something significant happened to trigger that change. While T.A.S. testified to the contrary, I am satisfied that she was in a state of agitation and her memory of precisely what she said is less reliable.

For these reasons, I am satisfied that T.A.S. expressed words of self-harm on April 9, 2016. [ 17 ] When T.A.S. tried to leave E[…], three of the four staff on duty that day followed her. Ms. Long testified that T.A.S. “stormed” out the door. The first staff to follow T.A.S. was a youth worker named Maverick. When Ms. Praymack and Ms. Long caught up to T.A.S. and Maverick, they were in the alley and Maverick was blocking T.A.S.’s progress with his arms spread wide and was encouraging T.A.S. to come back. T.A.S. refused and tried to leave. When Ms.

Long caught up, she tried to sooth her and encourage her to return. Ms. Long testified that, at this point, T.A.S. was mad, yelling, refusing to come back and was trying to get away. [ 18 ] Maverick grabbed T.A.S. around the waist to halt her progress. Maverick and Ms. Long then each grabbed one of T.A.S.’s arms and began walking her back to E[…]. At which point, T.A.S. started kicking Ms. Long and tried to pull her arms away. Maverick and Ms. Long then tried to place T.A.S. in a two-person restraint. All three ended up on the ground, with T.A.S. face down in the mud, with Maverick and Ms.

Long trying to hold her arms and Ms. Preymack trying to hold her legs. T.A.S. got one arm free and tried to punch Ms. Long more than once. For the most part, her punches were ineffectual. However, T.A.S. then bit Ms. Long on the arm and did so with sufficient force to leave bruising and bite marks on Ms. Long’s arm. [ 19 ] Soon thereafter the police arrived and T.A.S. was arrested and escorted away by the police. [ 20 ] T.A.S. subsequently returned to live at E[…] until June of 2016, at which point, she returned to live with her mother. [ 21 ]

Article 9.3 of the Residential Services Manual sets forth the Ministry of Social Service’s policies and procedures with respect to children who run away from residential facilities. For example, this document describes the following intervention strategies to be used by caregivers to discourage and prevent children from running away from residential facilities: 1. Every residential program shall develop interventions to keep children from running away.

These may range from verbal interventions, to more intrusive interventions such as a physical restraint, dependent upon the factors contributing to the child's risk to abscond and the risks the child presents to their safety through their actions. These interventions may include, but are not limited to: • Verbal interventions to develop a plan with the child to address the issues contributing to the child's intent to run away; • Contracting with the child -- receiving a verbal or written agreement from the child to not run away;

• Utilizing the relationships with a program worker, an elder, a family member or other significant person who may be able to offer support to help stabilize the child (i.e.

A child who wants to run to make family contact could be prevented from running by facilitating a phone call and arranging to bring family members to the residential program); • Restricting access to the community or specific program activities that would increase the opportunity for the child to abscond; • Restricting access within the program to a specific location where the child can receive intensive supervision such as “eye-sight” or “arm's length” from program workers; • Additional program workers assigned for the responsibility of providing intensive supervision of the child who is at risk of running; • Program workers physically blocking points of exit to prevent the child from leaving; • The use of a physical intervention by program workers in order to prevent the child from running, and to keep the child safe. 2.

In situations where workers discover a child is in the process of attempting to leave the residential program without authorization, all reasonable efforts should be attempted in order to prevent the child from leaving. Where a child's individual care and treatment plan has identified the risks of harm to this child should they run away, all interventions, including the use of physical restraint as a safety measure, will be used in order to prevent the child from leaving. 3.

Where program workers discover a child is in the process of attempting to leave the program or their supervision without authorization, they need to quickly communicate to other program workers the urgency of requiring assistance to prevent the child from leaving. [ 22 ]

Article 9.1 of the Residential Services Manual sets forth the Ministry of Social Service’s policies and procedures with respect to children who are at risk of self-harm or suicidal behavior. This documents directs the following intervention when self-harm is a risk: 9.

Where a child who is presently at risk of self-harm or suicide, attempts to run away, residential program workers shall take all reasonable measures, including the use of physical restraint, to prevent the child from leaving. [ 23 ] There was no evidence that T.A.S. had a knife or a weapon or any other means of self-harm when she left E[…] nor was she actively engaged in any form of self-harm at the time.

CROWN’S POSITION [ 24 ] The Crown takes the position that youth workers not only have authority to physically restrain youth in provincially-licensed care facilities but that such authority is necessary to ensure the safety of vulnerable young persons in out-of-home care. [ 25 ] The Crown relies on s. 52 of The Child and Family Services Act , which grants the Minister (responsible for the administration of that Act ) with “all of the rights and responsibilities of a parent”.

In other words, the Minister is granted by statute the status of a parent over any child brought into the care of the Ministry of Social Services. The Crown argues that this authority is delegated to caregivers in residential care facilities by The Residential Services Act , and that the exercise of that authority is prescribed and regulated by provincial policy and procedure, including the Residential Services Manual. [ 26 ] The Crown argues that Ms. Long and the other youth workers at E[…] had authority to restrain T.A.S. in light of her personal circumstances and the events that transpired on April 9, 2016.

The Crown points to T.A.S.’s previous history of self-harm, including cutting. The Crown also points to the evidence that, on April 9, 2016, T.A.S. expressed suicidal thoughts prior to her second attempt to run away from E[…]. The Crown observes that T.A.S. had previously run away from E[…] and had done so approximately 45 times prior to this incident. The Crown argues that on April 9, 2016 things changed with T.A.S.’s expression of suicidal ideation. The Crown argues that T.A.S. was agitated, expressing thoughts of self-harm, and was trying to leave the safety of E[…].

The Crown argues that, but for the intervention of Ms. Long and the other youth care workers, there was a serious potential that T.A.S. could have harmed herself. [ 27 ] The Crown argues that Ms. Long and the other staff at E[…] tried verbal intervention to encourage her to stay, they tried to sooth her, and they tried blocking her progress in the alley by non-physical means. Only when these measures failed was any physical force applied to T.A.S. The Crown also argues that the force applied by Ms.

Long and the other youth workers was restrained, starting with light contact, and only escalating when T.A.S. began to pull away, then kick, punch and bite Ms. Long.

[ 28 ] The Crown argues that the youth workers were reasonable in the exercise of their authority to restrain T.A.S. and only did so out of necessity. Under these circumstances, the Crown argues that the defence of self-defence is not available to T.A.S.. POSITION OF THE DEFENCE [ 29 ] The defence takes the position that the youth workers at E[…], including Ms. Long, have no authority to restrain or apply force to a young person in their care. Relying on R v TD , infra , and R v JG , infra , the defence takes the positon that caregivers in residential facilities do not stand in the place of a parent and thus the use of reasonable force by way of correction is not authorized by

section 43 of the Criminal Code . [ 30 ] The defence notes that youth workers and other care givers in residential facilities are neither designated as peace officers or correction workers. Simply put, the defence argues that caregivers in residential facilities stand in the same position as other members of the public with no greater right to use force than anyone else. [ 31 ] Finally, T.A.S. denies that she said anything to indicate that she wanted to harm herself on April 9, 2016. However, even if she did do so, the defence argues that the actions of Ms.

Long and the other youth workers was not for the purpose of preventing actual or imminent harm as there was no evidence that T.A.S. had a weapon with her or that she had any means to actually harm herself or that she was in the process of actually harming herself. [ 32 ] Therefore, the defence takes the position that Ms. Long, Ms. Preymack and Maverick committed an unlawful assault on T.A.S. when they attempted to physically restrain her on April 9, 2016. The defence argues that the force used by T.A.S. was for the purpose of defending and protecting herself.

Furthermore, the defence argues that T.A.S.’s actions were directed at repelling the youth workers and were reasonable in the circumstance. Firstly, the defence notes that T.A.S. only used force after force had been applied to her. Secondly, the force T.A.S. used only escalated as the force being applied to her by the youth workers escalated. Thirdly, throughout the incident, the use of force by T.A.S. was proportionate to the force being applied against her.

Finally, the defence notes that T.A.S. was a young person being restrained by three (3) adults, placing her at a significant physical disadvantage. [ 33 ] For these reasons, the defence argues that T.A.S. is not guilty of assault on the basis that her actions were excused or justified on the basis of self-defence. ANALYSIS [ 34 ]

Section 265 of the Criminal Code provides, in part, that a person commits an assault when, without the consent of the other person, she intentionally applies force to that other person, directly or indirectly. There is no dispute that T.A.S. applied force to Ms. Long. She kicked her, she punched her (albeit somewhat ineffectually), and she bit her on the arm. The kicking and the biting were sufficient to bruise. As indicated, none of this is disputed by T.A.S. The issue is whether or not T.A.S.’s actions were justified or excused on the basis of self-defence. [ 35 ] The defence of use of force in self-defence is now codified in

section 34 of the Criminal Code as a statutory defence. While this

section has broad application, the most common circumstance where the defence applies is where force is used to resist force. This

section provides that a person is not guilty of assault if three essential elements are present: (1) the accused must believe on reasonable grounds that force is being used or threatened against them; (2) the actions of the accused (i.e.: the assault) must be for the purpose of defending themselves from that force; and (3) the force used by the accused must be reasonable in the circumstances. There are both subjective and objective elements to the defence of self-defence.

For example, the accused must subjectively believe they are defending themselves (or another person) and they must act reasonably in both their perception of the threat and their response to it. See: R v Pankiw , 2014 SKQB 381 at para 27 , (2014) 462 Sask R 217 [ Pankiw ].

See also: R v Polapady , 2014 ONCJ 121 at para 10 , [2014] OJ No 1182 (QL) [ Polapady ]. [ 36 ] In the nomenclature developed by Professor Steve Coughlin in his paper The Rise and Fall of Duress: How Duress Changed Necessity before Being Excluded by Self-Defence , (2013), 39 Queen’s LJ 83-125, self-defence consists of a trigger, a response and a filter. The trigger for self-defence is the use or threat of force. The response is committing some act which constitutes an offense. The filter is “reasonableness”.

[ 37 ] Subsection 34(2) sets out a non-exhaustive list of factors that a trial judge must consider in determining if the force used by the accused was “reasonable in the circumstances” and “for the purpose of defending or protecting themselves or the other person from that use or threat of force”. These factors include: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 38 ] In deciding the reasonableness of the accused’s perception of the threat and response to it, the court is directed to consider a broad range of factors, including the personal characteristics of the accused.

It seems clear that “reasonableness” is then to be assessed on a modified objective standard wherein the so-called reasonable person against whom the actions of the accused are measured has similar characteristics and experiences to that of the accused. [ 39 ] Even if all of the elements of the defence of self-defence are present (including both the subjective and objective elements), subsection 34(3) excludes the application of that

section in certain circumstances. It is this provision upon which the Crown argues that the defence of self-defence is not available to T.A.S. Subsection 34(3) makes inapplicable the defence if the person against whom the accused applied force was acting under the authority of law either in term of enforcement or administration thereof. The only exception to this exclusion is if the accused reasonably believes the person with authority, for instance, a peace officer, is acting unlawfully.

This subsection reads as follows: (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully [ 40 ] Finally, while both the subjective and objective elements of the defence must be present for an accused to avail herself of the defence, an accused need only lead evidence sufficient to establish an “air of reality” to the defence.

This is an evidentiary burden only and the evidence need not come directly from the accused. See: R v JG (2011), 2011 ABPC 3 , 506 AR 389. But there must be some evidence on each of the elements set forth in subsection 34(1). If there is an “air of reality” to the defence, the Crown must prove beyond a reasonable doubt that the defence is not available to the accused. In doing so, the Crown is not required to prove beyond a reasonable doubt that the accused failed on every element of the defence.

It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not present or that the exclusion set forth in subsection (3) applies. See: Pankiw and Polapady . Are the requisite elements of the defence of self-defence present? [ 41 ] Periodically, to reflect the burden of proof accurately in criminal proceedings requires that I do that which many previous teachers forbade - to communicate using multiple negatives. Unfortunately, an accurate articulation of the burden of proof necessitates certain linguistic gymnastics.

Where possible, I will translate into a more approachable albeit less accurate (at least in terms of the burden of proof) form of communication.

[42] None of the requisite elements for the use of force in self-defence have been disproven by the Crown beyond a reasonabledoubt. Translation: I am satisfied that both the subjective and objective elements set forth in s. 34(1) of the Criminal Code were presenton April 9, 2016 when T.A.S. kicked, punched and bit Ms. Long. There is no dispute and I am satisfied that T.A.S.’s actions wereresponsive to a non-consensual force being applied against her.

While the evidence demonstrates that T.A.S. was in a state of agitationand was upset at the caregivers at E[…], there is no dispute that the force applied by T.A.S. only occurred after Ms. Long and Mavericktried to restrain her. In other words, the requisite trigger was present - being T.A.S.’s subjective belief that she was being assaulted. Theevidence also demonstrates that T.A.S.’s actions were in response to force being applied to her and were directed at repelling that force -the efforts of Ms.

Long and Maverick to restrain her. [43] Having considered the elements set forth in s. 34(2), I have a reasonable doubt that T.A.S.’s actions were not reasonable underthe circumstances. Translation: Having considered all the evidence, I am also satisfied that T.A.S.’s actions were reasonable under thecircumstances. Certainly, it is not possible to say that the force she applied to Ms. Long on April 9, 2016 was “clearly disproportionate”or “unreasonable” when compared to the force being applied to her.

While the force utilized by T.A.S. escalated to the point that Ms.Long received bruising, it was proportionate to the escalating force being applied to herself. T.A.S. was a young person being restrainedby three (3) adults. She was pushed to the ground and would have been at a significant physical disadvantage. Ultimately, she wasunsuccessful in avoiding being restrained. Furthermore, the reasonableness of T.A.S.’s response must be viewed objectively through theeyes of a sixteen year-old girl.

When I do so, I am satisfied that her actions were not unreasonable in the circumstances. [44] The central issue in these proceedings (and the issue upon which counsel focused their respective arguments) is whether or notthe Crown has proven beyond a reasonable doubt that the exclusion set forth in s.34(3) applies such that the defence of self-defence is notavailable to T.A.S. This issue turns on whether or not the use of force to restrain T.A.S. by the youth workers at E[…] on April 9, 2016,was something they were authorized to do in the administration or enforcement of law.

Do youth workers at E[…] qualify as persons standing in the place of parents as contemplated by

section 43 of the CriminalCode? [45]

Section 43 of the Criminal Code permits school teachers, parents and persons standing in the place of a parent to use limitedforce by way of correction toward a pupil or child. See: R v Ogg-Moss, (SCC), [1984] 2 SCR 173 (SCC) [Ogg-Moss].The Crown argues that Ms. Long and the other caregivers at E[…] had status as a person standing in the place of a parent and that theiractions in restraining T.A.S. on April 9, 2016, were authorized by this section. [46] I would like to preface my analysis of this point with the observation that it was apparent to me that both Ms. Long and Ms.Preymack cared deeply for T.A.S.

There is no doubt in my mind that their actions on April 9, 2016, in restraining T.A.S. were guided bya genuine desire to prevent her from coming to harm. However, I am not satisfied that the youth workers at E[…] were persons standingin the place of a parent or that s. 43 of the Criminal Code has any application to these proceedings. [47] As noted by the Supreme Court of Canada in R v Ogg-Moss, a person only obtains status to stand in the place of a parent bytwo means. The first is if the person assumes parental obligations, including financial.

The second is if there is a delegation of parentalrights by the natural parent. See also: R v VAF, (1989), (SK KB), 53 CCC (3d) 74, 80 Sask R 111, 1989 5115 (SKQB). I am not satisfied that the youth workers at E[…] acquired status by either means. [48] T.A.S. came into the care of E[…] because she was placed there by the Ministry of Social Services. There is no evidencebefore me to establish that either of T.A.S.’s parents granted any parental rights to the youth workers at E[…] as envisioned by thesecond means identified in Ogg-Moss.

Rather, the Crown argues that the caregivers at E[…] acquired parental status within the meaningof s. 43; (1) through delegation of authority by the Minister of Social Services; or (2) by implication of the fact that E[…] in P[…] wasthe source by which all of T.A.S.’s needs for sustenance, education and care were being provided at the relevant time.

With all duerespect, I do not accept either of these arguments. [49] While I am satisfied that the Minister responsible for The Child and Family Services Act stands in the place of a parentpursuant to s. 52 of that Act, I am not satisfied based on the evidence presented to me that this status was acquired by or delegated toanyone else. There was no evidence tendered to demonstrate that Ms. Long or the other caregivers at E[…] were specifically delegatedstatus to stand in the place of a parent by the Minister.

The Crown argues that it would be impracticable for the Minister to specificallydelegate such status to each caregiver involved with all of the children in the Ministry’s care. Rather, the Crown argues that caregivers atresidential care facilities obtain the requisite status pursuant to the operation of The Residential Services Act and the vital function theyperform in caring for children. With all due respect, I can find no authority in that Act or in The Child and Family Services Act permittingthe Minister to delegate his parental authority to anyone.

[ 50 ]

Section 23 of The

Interpretation Act, 1995 , S.S. 2000, c.I-11.2, defines how ministerial powers are delegated and to whom. However, the scope of ministerial delegation only extends to persons who are employed in the ministry over which that minister presides. Furthermore, the delegation of ministerial authority must be in writing and must set forth the specific administrative, legislative, judicial or other authority being delegated. No evidence was tendered that Ms.

Long was employed within the Ministry of Social Services (to the contrary she was an employee of E[…]) or that the Minister’s statutory status as a person standing in the place of a parent pursuant to s. 52 of The Child and Family Services Act was delegated to her in the form anticipated by ss. 23 and 23.1 of The

Interpretation Act, 1995 . [ 51 ] The second argument of the Crown was that the vital function performed by E[…] in housing, feeding and caring for vulnerable children was analogous to assuming parental obligations. For the reason set forth by this court in R v TD, 2016 SKPC 109 , the function performed by the E[…] - as important as that role may be in caring for vulnerable youth - is not sufficient to grant the caregivers at that facility status to stand in the place of a parent. [ 52 ] For the foregoing reasons, I am not satisfied that Ms.

Long or the other caregivers at E[…] fall within the classes of persons to whom s. 43 of the Criminal Code applies or were delegated that status by the Minister or by operation of law. Having come to this conclusion, I will leave for another day the issue of whether or not the limited corrective force anticipated by s. 43 would have authorized the kind and extent of force applied to T.A.S. on April 9, 2016.

Were the actions of the youth workers in restraining T.A.S. something they were authorized to do in the administration or enforcement of law? [ 53 ] I would like to again preface my analysis with an observation: the caregivers at E[…] acted reasonably when they concluded that there was a potential that T.A.S. could harm herself if she left E[…] on April 9, 2016. Nonetheless, I am not satisfied that Ms.

Long or the other youth workers were authorized to use physical force to restrain her from leaving. [ 54 ] In coming to this conclusion, I note that, unlike the circumstances in R v TMD , 2008 ABPC 228 , the conduct that triggered the efforts to restrain T.A.S. was not predicated on a mere breach of facility’s rules. While I accept that T.A.S. did not engage in self- harm while at E[…], she had a significant history of self-harm prior to being at E[…]. I am satisfied that T.A.S. expressed words of self- harm and was in a highly agitated state prior to her attempt to leave.

She was walking away from the facility and the caregivers at E[…] reasonably believed that she was at risk of self-harm if she left. While T.A.S. was not actively trying to harm herself or anyone else, she was trying to leave E[…] under circumstances where the staff reasonably believed that she was at risk of self-harm. [ 55 ] Furthermore, unlike the circumstances in R v TD, supra , I am satisfied that the youth workers at E[…] diligently tried a variety of non-violent and non-physical approaches to prevent her from leaving prior to resorting to physical force.

They tried soothing techniques; they tried persuasion; and they tried physically blocking her movement away without physical force, all without success. I am also satisfied that they individually and collectively complied with the requirements and expectations of them as set forth in the Residential Services Manual. [ 56 ] I also note that the Residential Services Manual clearly contemplates that caregivers in residential care facilities have the authority to use physical restraint to prevent young persons from leaving a residential facility under these circumstances.

However, I can find no authority in The Child and Family Services Act or in The Residential Services Act that grants youth workers the right to use physical force in restraining young persons from leaving a residential facility. The fact that the Residential Services Manual contemplates authority does not mean that such authority exists or has been properly delegated to the individuals in question. Restraining and confining a person against their wishes is an extraordinary power.

While policy documents such as the Residential Services Manual are often used to circumscribe the exercise of a power, they are not the source of the authority. [ 57 ] Even if I agree with counsel for the Crown that youth workers need authority to restrain vulnerable youth under such circumstances, that authority must be granted by the legislature and clearly delegated to the appropriate officials. Based on the authorities cited and the evidence before me, I am not satisfied that such authority exists or, if it does, was properly delegated to the youth workers at E[…].

Absent clear authority, properly delegated, I am left with a reasonable doubt that the actions of Ms. Long in restraining T.A.S. were authorized in the administration or enforcement of law. [ 58 ] As a result, I find that the defence of self-defence is not precluded by operation of s. 34(3) of the Criminal Code . CONCLUSION

[ 59 ] In conclusion, I find that Ms. Long and the other youth workers at E[…] had no legal authority to use physical force in restraining T.A.S. on April 9, 2016. Because their actions were not authorized by law, T.A.S. was entitled to defend herself from the use of force against her. Having considered the factors set forth in s. 34(2) of the Criminal Code and the evidence before me, I find that her actions were reasonable in the circumstances. As a consequence, while T.A.S. intentionally used physical force against Ms.

Long in kicking, punching and biting her, I am satisfied that she did so in self-defence. [ 60 ] As a result, I find T.A.S. not guilty on both counts to which she stands accused. Dated this 16 th day of December, A.D. 2016, at the City of P[…], in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J