The B.C. Supreme Court is shown in Vancouver, B.C.. The B.C. Court of Appeals has struck down a section of the province's child protection legislation that allowed social workers to access a parent's medical records without their consent, a search warrant or a court order.DARRYL DYCK/The Canadian Press
British Columbia’s top court has struck down a provision in a child-protection law that gives government social workers wide access to the medical, counselling and school records of parents under investigation.
The provision, which has been in place in B.C. for more than 25 years, is the toughest of its kind in the country. Other provinces generally require social workers to seek parents’ consent or obtain court orders before viewing personal records held by public bodies such as health agencies.
In B.C., by contrast, child-protection workers have a broad right to obtain personal records they consider necessary to their duties without seeking consent or a judge’s authorization. They do not even need to notify the parents, before or after obtaining the records. The province argued in court that the need for timely decision-making in child protection outweighs privacy rights.
The 3-0 ruling from the B.C. Court of Appeal came after a mother of three with a history of trauma, mental-health issues and substance abuse learned that a social worker was seeking her medical records and her family’s psychiatric history. A nurse practitioner had contacted her and asked for her consent, though that was not necessary under the law.
By that point, the government had already obtained her personal and family records from a separate health agency. The mother, who is identified in court documents as T.L., then challenged the 1996 law, known as the Child, Family and Community Services Act.
Child protection and the notion of children’s best interests have long been thought to take priority over parental rights, the court wrote in its decision.
Even so, the court found the provision does not strike a fair balance, and therefore violates Section 8 of the Charter of Rights and Freedoms, which protects people against unreasonable search and seizure.
The court said the provision could put a “chill” on parents’ willingness to seek medical or therapeutic help, and lacks procedural safeguards and transparency.
Under the B.C. provision, “social workers are not required to objectively justify the basis on which the information has been obtained,” Justice Joyce DeWitt-Van Oosten wrote. Justice John Hunter and Justice Peter Voith signed on to the judgment.
The result is that child-protection authorities may receive “intensely private information about individuals that is not ‘necessary’ for (or useful to), the matter at hand. Or, for that matter, even relevant.”
The court gave the provincial government 12 months to write a new provision before the current one is deemed not to be in force. The court said judicial authorization is not required by the Charter, leaving open the possibility that the new provision will still allow access without court orders.
B.C.’s Ministry of Child Development said in a statement that the provision, which is in Section 96 of the law, has been an important tool for child protection, and that the government will be reviewing the ruling.
Paul LeBlanc, a lawyer for T.L., said most case law on the Charter’s Section 8 has been developed in the criminal-law context.
The B.C. ruling “spotlights the fundamental importance of privacy to everyone, especially where sensitive health information is concerned,” he said. “Governments will have to be more mindful of the privacy interest in sensitive information they collect, use and disclose.”
The court declined to order the province to remove his client’s medical information from its files. This means social workers will still be able to use T.L.’s health records, even though the law was struck down, he said.
He said his client is “working hard to take care of her three children” and is not giving interviews.
“T.L. is very happy that what she went through won’t happen to anyone else,” Mr. LeBlanc said.
Rollie Thompson, a law professor at Dalhousie University’s Schulich School of Law, called the B.C. law “extraordinary” in its sweep and lack of process.
“Someone reports you, and the next thing you know all your health records are available,” he said. “It’s basically a licence to get whatever records you want, whether they’re relevant or irrelevant.”
He helped draft Nova Scotia’s child-protection law in 1990, he said. That law requires social workers to seek authorization from a judge or justice of the peace, because he and others believed that was necessary to comply with the Charter. To obtain judicial authorization, the authorities need to show reasonable grounds that the records are relevant to a child-protection investigation. Such judicial warrants in many Canadian jurisdictions can be obtained ex parte – with only one side represented – and over the phone.
Prof. Thompson said he found it “surprising, even alarming” that the court is not requiring judicial authorization when the government rewrites the provision.
Bety Tesfay, a lawyer for West Coast LEAF, a women’s legal advocacy group that was an intervenor in the case, called the decision an important milestone, and said the “family policing system” disproportionately affects Indigenous peoples, the poor and substance users.
Maegen Giltrow, a lawyer who represented the BC Civil Liberties Association, another intervenor, praised the ruling, and said that where the state is making decisions that can affect families for years and even generations, “that’s not a time to relax safeguards.”