On April 24th, the Court of Appeal for British Columbia held that section 96(1) of the British Columbia Child, Family and Community Service Act infringes the Charter right against unreasonable search and seizure.
Section 96(1) gives British Columbia directors of child protection a right of access to information in the custody or control of public bodies, including health care bodies. Although for child protection purposes in the main, section 96(1) is worded broadly as follows:
96 (1) A director has the right to any information that
(a) is in the custody or control of a public body as defined in the Freedom of Information and Protection of Privacy Act, and
(b) is necessary to enable the director to exercise [their] powers or perform [their] duties or functions under this Act.
The Court held that “necessity,” in particular given section 96(1)’s child protection purpose, imposes only a limited restriction – confining the right of access to “any information in the custody or control of a public body that the ‘“’Director considers necessary.'”
Interpreted as such, and based on a balancing of parents’ interest in informational privacy against the competing state interest in protecting children from harm, the Court held that section 96(1) was unreasonable.
The Court held that the application judge erred by focusing to heavily on the manner of intrusion – which does not invite an intrusion upon the body, entry into a private dwelling or ongoing surveillance – without giving due weight to the sensitivity of the information at issue. It said:
In applying the second Goodwin factor, a judge must consider not only the extent to which a particular methodology directly engages with the target of the search or seizure and interferes with their bodily integrity or personal surroundings, but the impact of the state action on their reasonable expectations of privacy in light of the nature of the items or information involved. In his earlier-cited article, Professor Penney describes the intrusiveness analysis in this manner: it is an assessment of the “degree to which [the search or seizure] discloses intimate personal information or compromises dignity, autonomy, or bodily integrity”: at p. 96, emphasis added. I agree.
The Court also held that the application judge erred in finding that section 96(1) has sufficient safeguards. Importantly, it said that prior judicial authorization or prior notice is not required to meet section 8’s standard of reasonableness, but held that section 96(1) lacks other features that renders it unreasonable. The Court (oddly) criticized the clarity of section 96(1) and suggested that the province replace the necessity requirement with a reasonableness requirement (?). More plainly, the Court said that the province must at least provide for after the fact notice and a meaningful oversight mechanism.
The Court declared section 96(1) to be of no force an effect to the extent that it authorizes the production of personal information, suspended the declaration for 12 months and ordered that the declaration be prospective only.
T.L. v. British Columbia (Attorney General), 2023 BCCA 167 (CanLII).
Hat tip to Ian Mackenzie.