Case Report – Manitoba CA denies access to child and family services records

On July 25th, the Manitoba Court of Appeal held that the media ought not to be allowed to publish information in records protected under child and family services legislation that were tendered in a public inquest into the death of a 14-year-old child.

The decision deals with the interaction between the prohibition against disclosure of certain records in section 76(3) of the Manitoba Child and Family Services Act and the open inquest presumption embedded in section 31(1) the Manitoba Fatality Inquiries Act.  

The Court held that the CFSA does not strip a judge holding an inquisition from exercising a discretion to permit publication of the protected records but also held that section 31(1) of the FIA does not mean that protected records that are filed as exhibits in an open inquest are automatically “public” in the sense they are open to all use.  In the circumstances, and in applying the Dagenais/Mentuck test, the Court held the records should remain protected.  It endorsed a statement by the inquest judge which stated, “confidentiality of disclosure [sic] used to assist child and family in abusive and neglectful situation” is a social value of “superordinate importance” to freedom of expression and freedom of the press.

Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2008 MBCA 94.