R. v. V.M., 2019 BCPC 122

Citation: R. v. V.M. 2019 BCPC 122 Date: 20190509 File No: BB101068-2-C Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. V.M. ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE B. HOY Counsel for the Crown: M. Merry Counsel for the Defendant: C. Reeves Place of Hearing: Bella Bella, B.C.

Dates of Hearing: January 29, 30, 2019 Date of Judgment: May 9, 2019 [ 1 ] THE COURT: The Charter question raised in this voir dire is whether the defendant's s. 8 right to be secure against unreasonable search or seizure and s. 9 right not to be arbitrarily detained, were infringed. [ 2 ] This case involves an assessment of s. 30 of the Child, Family and Community Service Act, R.S.B.C. 1996

Chapter 46 ( CFCSA ). It relates to the removal of children in need of protection without a warrant and the police assistance provisions of ss. 3. Furthermore, in this evaluation there will be a determination of whether the child is in need of protection as set out in s. 13. The Facts

[ 3 ] Kristy Fisher (Kristy) is a child protection worker in Bella Bella. Her team leader is Maria Swart (Swart). On January 19th, 2018 Swart received a complaint concerning the well-being of two children, K.R. and S.R. This had been made by the defendant's stepfather, P.M, and her mother, R.R. Their concern was the defendant had been drinking and using marihuana excessively and that there were a number of intoxicated males in her home. Further, the grandparents had been caring for the children by feeding them breakfast and lunch.

There was a concern about the lack of food in their mother's home and a complaint about garbage in the residence. It was also reported that K.R. did not want to leave his mother alone. This information was recorded in their system, and an assessment was to be made for a protection response in five days. Meanwhile, Swart called the police to conduct a wellness check. [ 4 ] Constable Fisher was made aware of these concerns. When he attended with another officer on the porch of the residence on January 19th no signs of intoxication were noted.

The defendant had a calm demeanour and interacted in a polite and positive manner. He told her the Ministry wanted an on-site visit in about a week's time. [ 5 ] The defendant called the police on January 21st, complaining that her parents were at her residence and that she wanted them removed. Upon Constable Fisher's arrival he was met by P.M., R.R., and the defendant's biological father.

They made complaints about the poor condition of the house, the abuse of drugs and alcohol, and the mother's inability to properly care for K.R., noting as well his developmental challenges and the need for a stable home environment. When they reviewed this with the mother she became upset and left with K.R. K.R. is 10 years old and is autistic. [ 6 ] On January 23rd a call was made by R.R. to the social worker, repeating the earlier complaints about the mother's heavy alcohol consumption and her inability to parent. The grandmother also expressed her concerns about her inability to keep K.R. at her home.

While speaking the child ran from her residence. [ 7 ] At 4:00 p.m. Kristy went to the defendant's residence, which is directly across the street from her office. Her intention was to do an assessment and a safety plan with the mother. She knocked on the door several times without response. She next saw K.R. approach the house and knocked on the door calling for his mother. Kristy persuaded him to get into P.M.'s vehicle, who had just arrived. The objective was to attempt to have him stay at his grandparents' home. Meanwhile, R.R. arrived at the residence and walked to the front door.

She unlocked it, at which point K.R. ran into the house. [ 8 ] The social worker next went to the residence, knocked on the open door and identified herself. There was no response. She then stepped into the house and noted the mother and an unknown male in a bedroom sleeping. K.R. was trying to rouse her. He shook her, called to her, and then bounced on her until she awoke. [ 9 ] Kristy met the defendant just inside the front door, explaining that there were safety concerns for the children and whether they could discuss a safety plan.

She was invited further into the residence and sat at the dining room table. [ 10 ] As they spoke about a safety plan the defendant was incoherent and unable to focus on the topic being discussed. She did not allow the social worker to explain a proposal to leave K.R. with the grandparents. At one point she agreed to sign the proposal, but she then refused to allow K.R. to leave her home. She became aggressive as she berated, screamed, and yelled profanities at Kristy, demanding that she leave her residence.

The social worker noted alcohol on the defendant's breath and bags of garbage and alcohol bottles piled up in the kitchen. Small space heaters were also observed on the floor, which she understood provided heat to the house. [ 11 ] As Kristy left she stated she was returning with the police and that they were going to discuss a safety plan. At this point the social worker was of the view she had grounds to remove K.R. In stating her grounds she noted the defendant was not in a position to parent and provide stability.

She added given her conduct and the condition of the home there was a likelihood of emotional harm to the child. While she agreed that the household conditions could be mitigated by a safety plan and thus address the prospects of the least disruptive measure to protect K.R., she observed such a plan could not be implemented given the defendant's negative interaction with her.

Furthermore, while the grandparents provided care for K.R., they were unable to maintain sufficient control to keep him at their residence, expressing as well that the mother was unable to provide adequate care for the child. [ 12 ] After consultation with Swart it was determined that she return and remove the child. [ 13 ] It is observed there is some conflict between what Swart records as to the state of the home versus Kristy's evidence. Where there is conflict the weight of the evidence prefers that of Kristy's.

In noting this, Kristy's evidence is also firsthand knowledge as opposed to Swartz. [ 14 ] Kristy next contacted her office assistant Arlene Brown to make arrangements for the attendance of the police at the defendant's residence. As a note concerning Brown's evidence, her accuracy of recollection of the details of the event is in conflict with other evidence. It is observed she did not make notes of the event, and the statement she gave was about a year after the event. Her accuracy of recollection has been clouded with the passage of time.

I find the evidence of others is preferred over hers concerning the details of what she did other than making arrangements for the police attendance. [ 15 ] At 4:00 p.m. January 23rd, Constable Fisher received a call from Arlene Brown. He relates that Brown explained MCFD had earlier attended the defendant's home, that the defendant and an adult male were heavily intoxicated and passed out.

Further, that Kristy with MCFD was waiting for the police to attend and assist with the removal of a child. [ 16 ] It was the officer's understanding they are required to attend with the Ministry in circumstances relating to child apprehension matters. That the Ministry has the right to enter a residence without a warrant with police attendance to keep the peace as they perform their duties, although he added that he did not know the exact limits of his authority.

It was the officer's understanding that K.R. was to be taken into care. [ 17 ] Constable Fisher briefed Sergeant Dion and walked to the residence, which was a short distance away. Both men were in uniform. [ 18 ] Approximately 10 minutes had elapsed by the time Kristy met the officers in front of her office. She explained the reasons for

the safety concerns for K.R. and that she was directed by Swart to effect a removal of the child and place him with P.M. and R.R., who were in their vehicle parked on the street. She also explained that she thought there would be resistance by the mother and child. [ 19 ] In further particulars, the officer had recorded that Kristy had advised him that K.R. was refusing to leave or go with MCFD or the grandparents. [ 20 ] The officer's knock on the door was answered by K.R. His notes establish he then stepped inside the front door.

He asked if his mother was home, to which the defendant responded as she came from a couch towards the door. The officer recalls K.R. then returned inside the residence, although his subsequent whereabouts is uncertain. [ 21 ] From the social worker's evidence, she relates that she had asked if she could speak to K.R.'s mother. K.R. responded with foul language for her to leave. From her notes the officer was five to six feet into the house as he spoke to the defendant, who was adjacent to a couch in the living area.

She also agreed she was inside the residence. [ 22 ] Sergeant Dion's recollection is that the door was answered by the defendant and that she had invited them into the residence. On this point I find the weight of the evidence supports the version related by Constable Fisher and the social worker. He confirms that the social worker was in front of him, estimating they were three to four steps or about 10 feet into the residence. [ 23 ] The defendant was angered by the presence of the social worker and became verbally abusive and aggressive towards her.

Her anger intensified with yelling and a torrent of expletives filled with disparaging names directed at her while the officer stood between them. The officer asked her to be quiet and tried to have the defendant listen to the social worker, but her anger at Kristy became extreme as she spit and screamed at the top of her lungs above the voice of the officer. [ 24 ] The social worker stated she tried to explain why she was there. She also noted that while she did have a direction to remove the child she was nonetheless still prepared to discuss the safety plan.

However, there was no opportunity to discuss anything, as the defendant was in a rage as she angrily spoke over her. She demanded that the social worker get off her porch. She stepped past the officer placing herself within one to two feet of Kristy. [ 25 ] The social worker next describes backing up, as she felt her life was in danger. She noted the defendant's hands were in her face as she continued to gesticulate wildly with her arms, thrusting them at her.

The officer describes her as shaking in her anger and that she had raised her hand as she either pointed or clenched her fist at her. [ 26 ] Her back was then to Constable Fisher. Sergeant Dion observed the defendant to be within an arm's length of the social worker and observed her to vigorously shake her finger and thrust it at her face. Sergeant Dion also noted the calm demeanour of Constable Fisher. [ 27 ] At the point in time when the defendant had moved past Constable Fisher to face the social worker, he would then have been between her and the rear exit of the residence.

He denied there was any intention to block her egress and noted she in fact had moved past him towards the social worker without difficulty. Sergeant Dion agreed that if the defendant wanted to leave she would have to pass the social worker and the sergeant. [ 28 ] Constable Fisher was of the view, given the defendant's high level of volatility, he feared for the safety of the social worker and thought she might strike her. He reached out, placed his hand on her arm and told her she was under arrest for breach of the peace.

His intention was to guide her back into the house and position himself between the social worker and the defendant. At that moment she pulled away and stopped her screaming, as the officer told her she needed to calm down. She then kicked the officer in the groin, which caused him to stumble backwards in the residence. He describes losing his breath and bracing himself against a fall as he felt a sharp, deep pain in his lower abdomen.

He told her she was under arrest for assaulting a police officer. [ 29 ] It was a struggle for Constable Fisher and Sergeant Dion to gain control over her as they moved from the entry area of the house to the porch, where she was eventually placed into handcuffs. Throughout, she continued to scream insulting remarks at the officers and spit copious amounts of sputum at Constable Fisher. [ 30 ] In the course of this, R.S. came from the residence and attempted to disrupt the arrest.

OC spray was used by Sergeant Dion to subdue him, and was then arrested for obstruction. [ 31 ] After the defendant was arrested she continued to scream threats of death to the officer and his family. This continued while she was in cells. While the officer did not detect an odour of alcohol he suspected she might have been under the influence of drugs. [ 32 ] From the defendant's audio recording while she was in cells, these words are noted at line 756: R.S., we got arrested for not doing anything. K.R. didn't want to go. They were trying to take K.R. and I didn't let them take K.R. K.R. was scared.

I told them to get the fuck out of my house. They arrested us. Fuck them. S. 8 Charter Breach Discussion and Analysis [ 33 ] This case is about the legal foundation for a social worker and police to enter a home without a search warrant. S. 30 of the CFCSA provides the statutory authority for a warrantless entry and removal of a child in need of protection. This must be considered in light of s. 13, which defines when protection is needed. In this analysis there is also an evaluation as to whether the protection concerns are based on reasonable grounds.

Finally, four other provisions in s. 30 must be fulfilled before a child can be removed. The legislation is a codified step by step procedure for removal of a child without a warrant. [ 34 ] The officers and the social worker had entered the defendant's residence. It was warrantless and presumptively a violation of the defendant's s. 8 rights to be secure from unreasonable search.

[35] The burden next shifts to the Crown to determine whether the search was reasonable. In that regard R. v. Caslake, 1998 1S.C.R. 265 sets out that in order for a search to be reasonable it must be authorized by law, the law itself must be reasonable and thesearch must be carried out in a reasonable manner. [36] S. 30(1) of the CFCSA reads as follows:

(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protectionand that (

a) the child's health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child.

(2) A director may, without a court order and by force if necessary, enter any premises or vehicle or board any vessel for the purpose ofremoving a child under subsection (1) if (

a) the director has reasonable grounds to believe that the child is in the premises or vehicle or on the vessel, and (

b) a person denies the director access to the child or no one is available to allow access to the child.

(3) If requested by a director, a police officer must accompany and assist the director in exercising the authority given by this section. [37] S. 30(3) statutorily authorizes the police to assist the social worker as she exercises her authority. The officer's authority flowsfrom the legitimacy of the social worker's reasonable grounds for a child's protection as set out by s. 13 of the legislation. Following thisis a multi-layered set of procedural safeguards from s. 30(1)(

a) and (

b) and (2)(1) and (b), each of which must be considered. [38] S. 13 lists a number of circumstances that defines protection. In S(B)v. British Columbia (Director of Child, Family andCommunity Service) (BC CA), 1998 38 RFL (4th) 138 BCCA the court noted that this is not an exhaustive list. [39] Whether a social worker had the requisite reasonable grounds to believe a child is in need of protection is measured on the basisof the balance of probabilities. Guidance as to how that test is evaluated was discussed in British Columbia Director of Child, Family andCommunity Service v. M.O. and R.O., 2009 19147 B.C.S.C. There, the court considered

section 17, which provision deals with priorjudicial authorization for various remedies concerning protection matters where the Director has been denied access to the child. Thewords of s. 17(1) (

a) are the same as that contained in s. 30, which states: … there are reasonable grounds to believe a child needs protection. [40] In determining what those reasonable grounds might be, the court noted this at paragraph 66: I have no difficulty agreeing with the contention that the standard of proof is less than the balance of probabilities; the cited authoritiesdealing with child protection generally support that. [41] As well, at paragraph 68 the court used these words: Therefore, under s. 17(1)(a), the Director must hold a belief that is objectively reasonable and based on some evidence – that is, it mustbe based on more than mere conjecture, suspicion, a hunch or intuition. [42] And further, at paragraph 69 this is noted: In my view, the standard “creditably based belief”, “bona fide belief in a serious possibility based on credible evidence” (Chiau at p.1166), and “reasonable belief” (Debot at para. 60) or “reasonable probability” (Debot at para. 60) are all analogous to the standardenunciated in s. 17(a) (

a) of the Act: a subjective belief based on objectively reasonable grounds . . . The standard is not one of merepossibility, but whether there are reasonable grounds to believe there is a real possibility of harm. [43] In the assessment of whether there are reasonable grounds that a child is in need of protection, s. 30 and s. 13 are weighed withs. 2 in mind. This

section sets the backdrop of the legislation for it to be interpreted with the paramount consideration being the safetyand well-being of children. Specifically, at s. 2(

a) it reads: This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations, and inaccordance with the following principles: (

a) Children are entitled to be protected from abuse, neglect and harm or threat of harm. [44] It is with this in mind and for the purposes of s. 30 the question of whether reasonable grounds to believe that the child needsprotection shall be evaluated in the same manner as set out in the M.O. and R.O. decision as the court considered it in the context of s. 17. [45] In the case at bar, was the social worker's subjective beliefs objectively reasonably held? Was there some evidence beyond mereconjecture, suspicion, hunch or intuition amounting to a real possibility of harm? The answer is yes. [46] In

summary, the grandparents made two complaints to the Ministry and one to Constable Fisher. This occurred over the spaceof four days and concerned the intoxicated state of the defendant and the negative impact it was having on the care of K.R. It wasadversely affecting proper nutrition, an appropriate home environment without adverse influences like the intoxicated state of others,cleanliness and consistent child care. [47] When the social worker attended the residence at about 4:00 p.m. on the offence date to do an assessment and discuss the safety

plan, the defendant appeared passed out on a bed, as it took K.R. several attempts to wake her. In subsequent interaction she was incoherent, aggressive, and screamed and yelled profanities at the social worker. Alcohol was noted on her breath and she was unable to focus on the topic being discussed. [ 48 ] While she was obviously upset at the social worker, the weight of the evidence gives support that it was alcohol and or drugs that drove her anger and confusion.

By comparison, she presented as an entirely different person when the officer saw her four days earlier, when she displayed a calm demeanour. [ 49 ] Noted as well in this assessment are the bags of garbage and alcohol bottles that were in the kitchen and that the home appeared to be heated with a small space heater.

The social worker's conclusions that the mother was unable to parent and provide stability, and that her conduct and the condition of the home would likely cause emotional harm are, when objectively considered, reasonably held. [ 50 ] Collectively, these particulars fulfilled the statutory requirements of s. 30 and s. 13 of the CFCSA that the social worker had reasonable grounds to believe that the child was in need of protection. [ 51 ] Turning my attention to s. 30(1) (a), I conclude that K.R.'s health or safety were in immediate danger.

I say this, keeping in mind s. 2, which places children's safety and well-being as the paramount consideration in the

interpretation of the Act . The evidence establishes the mother was not able to parent given her extreme intoxicated state as noted on January 23rd. [ 52 ] The next consideration is s. 30(1)(

b) and whether there was any other less disruptive measure available to protect the child. It is plain that the defendant did not want to review any option, even though the social worker was prepared to discuss possible placement of K.R. with the grandparents. She yelled and screamed above the voices of others as she angrily stated her displeasure at the presence of the social worker. There was no opportunity to discuss other options given the conduct of the defendant. The effect of her conduct was her rejection of anything the social worker was saying. [ 53 ] By s. 30(2)(

a) did the social worker have reasonable grounds to believe that the child is in the premises? There is plentiful evidence to conclude she had such reasonable grounds. Shortly after the arrival of Kristy, K.R. enter the house after R.R. let him in. He was the one who was attempting to wake up his mother, and later K.R. answered the door when the police were in attendance and subsequently ran back into the residence. [ 54 ] S. 30(2)(

b) requires an assessment of whether the mother was denying access to the child. The mother's extreme angry reaction demanding that Kristy leave her residence and her aggressive conduct of placing herself between Constable Fisher and Kristy leads one to reasonably conclude she was denying access. There is, as well, her statement while in cells, saying as much. [ 55 ] Upon the whole of the evidence, the statutory requirements of s. 30 have been fulfilled.

Furthermore, for the purposes of the officer's requested presence, he had been informed of the social worker's reasonable grounds which relate to the removal of the child due to the mother's intoxicated state, having been seen earlier passed out, as she exercised her s. 30 duties pursuant to the CFCSA . I find the officer was authorized by statute to assist the social worker and keep the peace as she performed her duties. Furthermore, the law was carried out in a reasonable manner. There was no s. 8 Charter breach.

S. 9 Charter Breach Discussion and Analysis [ 56 ] Were the defendant's rights pursuant to s. 9 of the Charter not to be arbitrarily detained, breached? The defendant has the onus to establish on the balance of probabilities that she had been physically or psychologically detained. [ 57 ] It was submitted that the defendant's liberty was deprived due to the physical presence of the police in her residence and her inability to exit her home as egress was blocked by the officers. Constable Fisher denied any intention to prevent her from leaving the home.

Sergeant Dion, who was at the front entry entrance, agreed that if she wanted to leave, she would have to pass by him and the social worker. Not put to him was whether he would have prevented her egress per se. [ 58 ] While it might be said the sergeant was preventing her from leaving given his physical presence at the entry area of the house, I find that in itself is not sufficient as it is speculative. It is the entirety of the circumstances which is weighed. It is noted at one point Constable Fisher was facing the defendant with the social worker and Sergeant Dion behind him towards the entry area of the home.

The defendant's ability to leave by the rear door was not obstructed. [ 59 ] In this very dynamic and rapidly evolving situation the defendant moved past Constable Fisher and confronted the social worker. The officer noted she did so without difficulty. While Constable Fisher would then have been standing between the defendant and the social worker it was the defendant who propelled herself into confrontation. It is quite plain the defendant was ignoring the officer's requests to calm down and listen to the social worker.

Indeed, she became more aggressive and volatile in her conduct towards the social worker, as she screamed above the voice of the officer. If it could be said that there was some form of psychological detention by the words of the officer to calm down, keep quiet or listen to the social worker, she did not appear to be constrained given her reaction by ignoring his request. [ 60 ] Upon the whole of the evidence and objectively considered, I do not find that the defendant was constrained in her liberty, either physically or psychologically.

There was no breach of her s. 9 Charter rights. [ 61 ] That concludes the judgment on the voir dire . [ 62 ] MS. MERRY: Thank you, Your Honour. (RULING ON VOIR DIRE CONCLUDED)