Globe and Mail

Court okays child seizures

No warrant needed in danger cases, Supreme Court rules in split decision

DAVID ROBERTS
Globe and Mail
With a report from Canadian Press
Saturday, October 14, 2000

WINNIPEG -- Social workers don't need a legal warrant to seize children they think are in danger, the Supreme Court of Canada ruled yesterday.

The court, ruling on a complaint by a Winnipeg mother whose day-old baby was taken in 1996, said children in several provinces may be at risk because social workers are required to obtain warrants before seizing them in non-emergency situations.

Social workers who reasonably think a child needs protection should be able to remove them in these circumstances without warrants, the court said in a 5-2 ruling.

The dissenting judges warned that giving such powers to social workers could lead to abuses.

The Winnipeg mother, a former prostitute identified only as K.L.W., argued the seizure of her third child without a warrant violated her right to security of the person under the Charter of Rights and Freedoms. The child was taken from a hospital by Winnipeg Child and Family Services shortly after it was born.

Yesterday's ruling will not change the current practice of social-service agencies in Manitoba, which can apprehend children without warrants but are required to later explain their actions in court.

But the ruling could affect provinces and territories where warrants are still required for seizures of children in non-emergencies.

"It is a great deal of authority," Deborah Zanke, communications officer for Winnipeg Child and Family Services, said about the non-warrant seizures. "It's always a last resort.

"The major issue is, should CFS require a warrant in non-emergency situations?" Ms. Zanke said.

The Supreme Court said that adopting an "emergency" threshold as the constitutional minimum for apprehending a youngster without a warrant is dangerous for children. This "risks allowing significant danger to children's lives and health," Madam Justice Claire L'Heureux-Dubé wrote for the majority.

"The state must be able to take preventive action to protect children and should not always be required to wait until a child has been seriously harmed before being able to intervene," the judge wrote.

Officials in several provinces were reviewing the decision to see how their child and family legislation might be affected by the Supreme Court finding.

Assessing the extent to which a child is at risk is always tricky because abuse and neglect often happen in private, the court said.

"It's often not a black-and-white situation," Ms. Zanke suggested. "I think the Supreme Court recognized this, that it's not always easy to determine what is an emergency or non-emergency situation."

Madam Justice Louise Arbour, writing the dissent, said it is possible to distinguish emergencies from non-emergencies and to reduce risks to children while warrants are obtained.

Warrants for non-emergency seizures are "constitutionally necessary, in order to protect both parents and children from unreasonable state interference," she wrote.Chief Justice Beverley McLachlin agreed with this view.

Indeed, children can be damaged if social workers seize them unnecessarily, Judge L'Heureux-Dubé acknowledged.

But this risk is outweighed by the risk to the child if social-services authorities are forced to delay. "A child should never be placed in such jeopardy," Judge L'Heureux-Dubé said.

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