Judge: Nunavut child protection law unconstitutional

Just days prior to the UN Universal Children’s Day on Nov. 20, the Nunavut court has declared that two major sections of Nunavut’s child protection law are unconstitutional.

In a judgment issued Nov. 17, Justice Robert Kilpatrick ruled that because Nunavut’s Child and Family Services Act does not provide for a prompt hearing in court after child protection workers apprehend a child, the law violates Section 7 of the Charter of Rights and Freedoms, which says all laws must be consistent with principles of fundamental justice.

Kilpatrick found that every other jurisdiction in Canada, child apprehensions must be screened in court within five to 15 days.

But the Nunavut law states a court order must be made 45 days after an apprehension, and doesn’t even provide for any type of judicial hearing on a child apprehension until 90 days after a first court appearance, Kilpatrick found.

Kilpatrick also blasted the GN for not changing its child protection law after a big ruling on the issue by the Supreme Court of Canada in 2000.

In a decison issued that year, the Supreme Court ruled that when agents of the state apprehend a child, there must be “a fair and prompt” hearing to ensure the apprehension is legal.

But in the 10 years following that decision, none of Nunavut’s justice ministers, who also serve in the capacity of attorney general, did anything to amend the legislation.

“Respect for the rule of law is what is required of any government, by whatever name it chooses to call itself, in a functioning constitutional democracy,” Kilpatrick said.

And Kilpatrick said if the GN’s Department of Justice lacks the capacity to review territorial legislation to ensure it’s in compliance with the Charter of Rights, they should “outsource” the work to someone who’s capable of getting it done.

“The citizens of Nunavut are entitled to the same standards of Charter compliance from their government as exist elsewhere in this country,” Kilpatrick said.

But at the same time, Kilpatrick suspended his decision for one year to give the GN enough time to amend its flawed legislation.

“Society has a moral and legal obligation to protect vulnerable children. Any shorter period of suspension might put the children of Nunavut at risk,” Kilpatrick said.

Paul Lesarge, a lawyer employed by the Nunavut Legal Services Board, brought the case to court on behalf of a parent known as “P.E.,” whose children were apprehended by a Nunavut child protection worker in February 2009.

The court, in October 2009, ordered that the children be returned to P.E. At the same time, P.E.’s lawyer challenged the constitutionality of the law.

The GN’s lawyers said in court that because of Nunavut’s chronic shortage of social workers and the territory’s geography, the government is not able to meet tight deadlines for court hearings on child apprehensions.

But Kilpatrick said this is not a valid excuse.

“The operational difficulties plaguing the Government of Nunavut’s Department of Social Services cannot justify or excuse non compliance with a constitutional requirement to ensure procedural fairness…,” he said.

He also said the law does not require the GN to use social workers to bring child apprehension cases to court.

And he chided the GN for dumping those tasks onto “beleaguered social workers” who are already burdened with more work than they can handle.

Instead, he said responsibility for conducting legal proceedings on family law matters should be transferred to GN lawyers.

“It makes little sense to burden social workers with additional legal responsibilities when they cannot cope with the existing level of demand being made upon their services,” Kilpatrick said.

Karen Wilford, senior family counsel at the Nunavut Legal Services Board, said in an emailed statement that her organization applauds Kilpatrick’s decision.

“Whenever a government exercises its power over private individuals or families, it must act in a manner that allows the family to understand in a timely and meaningful way the case against them and to respond to it with the assistance of legal counsel, should they so desire,” Wilford said.

Wilford said Kilpatrick’s decision doesn’t mean that the “important work” of social workers is hampered.

“Social workers will continue to intervene in situations where they believe that children are in need of protection. The declaration is suspended for a period of one year which should be ample time to amend the legislation,” she said.

And she also said Kilpatrick’s decision is timely, because it emphaszies the need to rewrite Nunavut’s family law legislation, which is now under review by the territorial government.