2016 BCPC 36, 2016 BCPC 36

Citation: Missing Persons Act , S.B.C. 2014, c 2 and C.R. Date: 20160217 2016 BCPC 0036 File No: 40312 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE MISSING PERSONS ACT , S.B.C. 2014, c 2 AND C.R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing for the Applicant : Constable Mante Place of Hearing: Campell River , B.C.

Date of Hearing: January 28, February 16, 2016 Date of Judgment: February 17, 2016 [ 1 ] This matter first came before me in the form of a written application by Constable Mante, of the Royal Canadian Mounted Police, for an order to compel an employee of the Canadian Imperial Bank of Commerce to disclose Ms. R.’s banking information to Constable Mante.

Constable Mante explained that her banking records would probably show the locations of automatic teller machines used by her, and so assist in determining her whereabouts. [ 2 ] I felt that further information was needed before I could render a decision, so I asked Constable Mante to attend court to provide that information. Because of concerns for Ms. R.’s safety, I directed that the court file be sealed and that the hearing be conducted in a closed courtroom. [ 3 ] In his written application, Constable Mante deposed that: a. Ms.

R.’s sister approached the RCMP on December 22, 2015, advised that she had not heard from Ms. R. since the summer of 2014, and asked that a police file be opened. b. As a result of that enquiry, Constable Mante initiated a missing person investigation in relation to Ms. R. c. On January 16, 2016, Constable Mante applied for, and was granted, an order under the Missing Persons Act SBC 2014, c 2, requiring Service Canada to provide to Constable Mante any information in the possession of Service Canada which would assist in

locating Ms. R. As a result of information provided by Service Canada, the RCMP were able to determine that Ms. R. had worked at a grocery store in [ city & province redacted ] from March to May, 2015. d. At the request of the RCMP, the [ city redacted ] Police Service interviewed several employees at the grocery store. They informed the [ city redacted ] Police Service that Ms.

R. was a secretive person who did not disclose much information about herself, that she had an ex-spouse in British Columbia whom she feared and from whom she had fled, that she changed her appearance (including her hair colour and glasses) during the two months that she worked with them, and that she left unexpectedly on May 12, 2015 and never returned. e. Ms. R.’s last known banking connection is an account with CIBC in [ city redacted ], British Columbia. f. There are unexecuted warrants for Ms.

R.’s arrest, on charges of fraud and theft, from British Columbia, Alberta and Ontario. [ 4 ] During the oral hearing, Constable Mante advised that he made further enquires after filing his written application, and that he procured the following information during those enquiries: a. Ms. R. has an adult daughter who lives in Ontario. The daughter has not heard from Ms. R. since the spring of 2014. She describes her mother as manipulative and dishonest, and puts little credence in the suggestion that Ms. R. may be fleeing from an abusive relationship.

She says that her parents’ relationship was abusive, but that it ended more than 30 years ago, and that her parents have not seen each other in many years. b. Ms. R. had an intimate relationship which ended in the spring of 2014. There is no history of police involvement in that relationship, and no reason to think that it was abusive. Constable Mante has spoken with the male partner in that relationship, who lives in Victoria. He says that he has no information about Ms. R.’s present location. Constable Mante does not believe that relationship to have been abusive.

Constable Mante is aware of no present threat to Ms. R.’s safety. [ 5 ] The question is whether I should order CIBC to disclose Ms. R.’s banking information in the circumstances described. [ 6 ] The Missing Persons Act defines a missing person as (underlining added): …an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and (

a) who has not been in contact with those persons who would likely be in contact with the individual, or (

b) whose safety and welfare are feared for given (

i) the individual's age, (ii) the individual's physical or mental capabilities, or (iii) the circumstances surrounding the individual's absence. It may be inferred from the information provided by Constable Mante that Ms. R. falls within subparagraph “a”. Although the evidence is scant, it might be inferred that she would likely be in contact with her sister or daughter. I will proceed on the assumption that such would be a fair inference. [ 7 ]

Section 16 of the Missing Persons Act provides (underlining added):

(1) A member of a police force may apply for an order requiring a person to give access to a record set out in

section 9 in respect of a missing person if the member has reasonable grounds to believe that the record (

a) may assist the police force in locating the missing person, and (

b) is in the possession or under the control of the person.

(2) A justice may make an order under this

section if the justice is satisfied that there are reasonable grounds to believe that the record (

a) may assist the police force in locating the missing person, and (

b) is in the possession or under the control of the person.

(3) A justice may impose any of the following that the justice considers appropriate: (

a) restrictions or limits on access to a record specified in an order under this section; (

b) terms and conditions on an order under this section.

Section 29 of the

Interpretation Act RSBC 1996, c 238 provides that the word “may” “… is to be construed as permissive and empowering”. For that reason,

section 16 of the Missing Person Act confers a discretion on the judge to whom the application is made. [ 8 ] The discretion is to be exercised in pursuit of the objectives of the statute. Those objectives were described by the Attorney- General when she moved second reading of the statute in the Legislature on March 4, 2014. She said (underlining added):

In the Missing Women Commission of Enquiry, Commissioner Oppal noted that police faced a major obstacle to obtaining timely information when investigating missing women. He recommended that the provincial government enact missing-persons legislation to grant speedy access to personal information of the missing persons without unduly infringing on privacy rights. This proposed legislation does just that. In Canada, we value privacy, but we need to recognize that there are times when police need tools to protect us.

The Missing Persons Act we are introducing recognizes this need and addresses it with the appropriate limits and judicial oversight. The act will allow police to apply to a justice for quick access to a missing person’s information that will help to locate their whereabouts and determine if they are safe . To be clear, this bill is not about criminal activity. Instead, our proposed law focuses on cases where a missing person has not been seen or in touch with people who are normally involved in their lives.

Our act will apply to those times when a person goes missing and there is no suspicion that their disappearance is the result of a criminal offence. The Missing Persons Act also focuses on minors and vulnerable or at-risk persons whose safety and welfare are of concern ….

I conclude that the legislative objective was to enhance the ability of the police to make enquiries and take steps to ensure the safety of missing persons, but that the Legislature intended that judge should also consider privacy issues when applications are made under the statute. [ 9 ] In this case, the evidence discloses no cause for concern as to Ms. R.’s safety.

In some cases, the fact that an adult has not been in touch with her nearest relative for 18 months might, by itself, give rise to concern that the missing person was unable to contact that relative, and that the circumstances giving rise to that inability might also pose a threat to the safety of that missing person. However, that inference cannot be drawn here. The evidence shows that, as late as May, 2015 (9 months after her last contact with her sister), Ms. R. was a free agent, holding down a job at a grocery store in [ province redacted ].

If she had wanted to contact her sister or her daughter at that time, she was well able to do so. The clear inference is that she did not want to be in contact with her sister or her daughter at that time. There is no evidence of any later event which might now be preventing her from contacting her sister or her daughter. [ 10 ] There is evidence, from Ms. R.’s former co-workers, that she is reclusive and has taken steps to render it more difficult to find her. That evidence supports the inference that she does not want to be found. She may simply want nothing to do with her sister or her daughter.

She is entitled to make those choices. In my view, it would be an unwarrantable intrusion on her privacy to make the order sought. [ 11 ] The outstanding warrants for her arrest provide another plausible reason for Ms. R.’s decision to depart without leaving a forwarding address. It is clear that Constable Mante’s application is made in good faith, and was impelled only by a desire to assist Ms. R.’s sister in her efforts to reunite with Ms. R. I have no criticism to make of Constable Mante. However, I think it appropriate to point out that: a.

The Missing Persons Act should never be used by the police as a tool to assist in the execution of a warrant for the arrest of a missing person. If the existing investigative tools available to the police are inadequate, that is a matter for Parliament to address under section 91(27) of the Constitution Act, 1867 . b. If the RCMP succeed in locating Ms. R., it will be their duty to execute the outstanding warrants for her arrest. So, the unintended consequence of the order sought may well be disadvantageous to Ms. R.

I acknowledge the legitimate public interest in the prompt execution of arrest warrants, but that does not justify the proposed infringement of Ms. R.’s privacy rights. [ 12 ] The application is dismissed. [ 13 ] The court file is to remain sealed, and is not to be open to search without judicial authorization. February 17, 2016 _____________________________ T. Gouge, PCJ