Court gives B.C. government 1 year to bring law into constitutional compliance

The B.C. Court of Appeal 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.

A three-judge panel said a section of B.C.’s Child, Family and Community Service Act is unconstitutional, finding the legislation lacked safeguards to protect parents’ deeply personal medical information.

The ruling, posted Monday, says the act allowed child welfare workers with the Ministry of Children and Family Development to access private medical information on parents from public bodies, including hospitals and medical clinics.

The panel says the section of the act allowing broad access to parents’ medical history was not “minimally intrusive,” as a lower court found, and could give access to “intensely private information” that was not a necessary part of an investigation.

Advocacy groups that intervened in the case say the court’s decision is a victory for parents and will force the province to bring in the proper safeguards.

The appeals court ruling says the act didn’t set out clear rules around the search and seizure of parental medical records, finding state interference with such information could have a chilling effect on parents seeking help and have a negative impact on relationships with health-care providers.

The ruling cites the writings of Steven Penney, a criminal law professor at the University of Alberta, whose analysis of the “reasonableness” of searches and seizures under the Charter informed the court’s findings.

In a phone interview Tuesday, Penney said the B.C. Court of Appeal found the legislation gave front-line child protection workers access to a subject’s medical information without having to demonstrate if a request for that information was reasonable.

Penney said those working in child protection are doing what they feel is needed during investigations, but the discretionary power to access parents’ medical information lacked “checks and balances.”

“But it still gave them sort of this unfettered latitude to obtain potentially highly intimate, highly personal, highly sensitive information without really having to demonstrate that the need for that evidence outweighed the privacy and dignity interests (of) the people to whom the information related, to the parents,” he said.

Penney said the court had to strike a balance between the state’s interest in protecting children from abuse and the privacy interests of parents.

The broad powers given to child protection workers made the law “highly vulnerable to this kind of challenge,” he said.

Disproportional impact on marginalized: lawyer

The ruling meant the panel sided with the appellant, a Prince George mother of three with a history of trauma and mental health issues who first came to the attention of the government in 2017.

Bety Tesfay, a lawyer with West Coast Legal Education and Action Fund, which intervened in the case, said the ruling is a milestone and “important victory for parents’ right to privacy.”

Tesfay said the child protection system is more akin to a “family policing” system that regulates, surveils and punishes parents rather than focusing on family well-being, which her organization is pushing for.

A system that recognizes children are better off with their families, Tesfay said, would be more “collaborative and respectful of the dignity and autonomy of [a] parent.”

She said parents and caregivers from marginalized and vulnerable communities are “disproportionately impacted by laws that don’t have adequate procedural safe grounds.”

Maegen Giltrow, a lawyer who acted for the B.C. Civil Liberties Association as another intervener in the case, said the court recognized how problematic the law was.

She said jurisdictions such as Ontario require child protection workers to seek consent or judicial authorization to access sensitive personal information.

“You can still fulfil the important mandate of child protection while having proper safeguards and oversight as opposed to sort of fishing expeditions into people’s personal records,” she said.

The ruling means the B.C. government has a year to bring its law into constitutional compliance.