COURT FILE NO.: 580/06
DATE: 20070411
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: THE CHILDREN’S AID SOCIETY OF THE UNITED COUNTIES OF STORMONT, DUNDAS and GLENGARRY, Applicant
- and -
THE HONOURABLE G. NORMAND GLAUDE, COMMISSIONER OF THE CORNWALL PUBLIC INQUIRY, Respondent
BEFORE: CARNWATH, JENNINGS & FERRIER JJ.
COUNSEL: Peter E. Chisholm, for the Applicant
Brian Gover & Patricia M. Latimer, for the Respondent
Leslie M. McIntosh, for the Intervenor, The Attorney General for Ontario
Daniel Henry, for the Intervenor, Canadian Broadcasting Corporation
HEARD: January 26, 2007
E N D O R S E M E N T
BY THE COURT:
[1] The Children’s Aid Society of the United Counties of Stormont, Dundas and Glengarry (“the CAS”) applies for judicial review of the November 16, 2006 decision of Commissioner G. Normand Glaude’s entitled Public Ruling on Confidentiality Measures for Exhibits Marked as “C” On An Interim Basis (“the confidentiality ruling”). The ruling concerns two exhibits filed at the Cornwall Public Inquiry hearings. The CAS says the Commissioner erred in his interpretation of subsection 75(6) of the Child Family Services Act, R.S.O. 1990, c.C.11 (“CFSA”). His interpretation leads to an unreasonable result, inconsistent with the legislative scheme underlying the Child Abuse Register and with the paramount purpose of the CFSA, which is to promote the best interests of children.
[2] The Cornwall Public Inquiry (the “Commission”) was established by the Lieutenant Governor in Council under s. 2 of the Public Inquiries Act, R.S.O. 1990, c. P.41 to inquire into the institutional response of the justice system and other public institutions to allegations of historic sexual abuse in Cornwall. The Commission arose after a police investigation into a large number of people who were alleged to be pedophiles operating in the Cornwall area.
[3] The CAS was granted full standing with respect to the Cornwall Inquiry in 2005.
[4] The CAS submitted to the Commissioner that the disclosure, publication, broadcast or communication of certain exhibits produced by it under subpoena would breach the confidentiality provision contained in subsection 75(6) of the CFSA, which prohibits the inspection of information maintained in the Child Abuse Register (“the Register”).
[5] The Register was created in June 1979. It is a centralized index of information about persons verified by children’s aid societies to have abused a child and about the children who are victims of that abuse. The Register is intended as a useful tool in the effort to protect children from child abuse. The CAS submits that this information should be kept confidential because harm could occur if the information were released.
[6] The CAS submits that the harm would include: the public identification of abuse victims and witnesses to the abuse; the publication of graphic details of abuse which could be embarrassing to the victims; information provided to the Register could be used in the wrong hands to post the information on the world wide web or to distribute the information elsewhere; victims of abuse may be discouraged in participating in an investigation if they knew that the reporting documents submitted by the CAS to the Register could be made public.
[7] On October 19, 2006, a 38-page document (document #737254) was entered as a confidential exhibit on an interim basis and marked as exhibit C-99. On October 30, 2006, a second document (#737308), was entered as a confidential exhibit on an interim basis and marked as exhibit C-105. Certain pages of these exhibits contain material relating to the Register.
[8] Specifically, these pages contain the CAS required forms used to report to the Register and related correspondence to and from the Register. The material includes the name of the offender, names of victims, the parents of victims, details of the abuse perpetrated by the offender and the treatment services offered by the CAS.
[9] The Commissioner concluded that since the pages of the exhibits in question that were forwarded to the Register by the CAS did not come from the Register itself, but rather from CAS files, there was no reason to prevent their disclosure.
[10] The following are the Commissioner’s reasons:
Child Abuse Register
Counsel for the Children’s Aid Society of The United Counties of Stormont, Dundas & Glengarry argued that portions of exhibits 99 and 105 should never have been disclosed and should at a minimum be subject to a publication ban because the information pertains to the Child Abuse Register.
Counsel relied on paragraph 75(6) of the Child and Family Services Act, R.S.O. 1999, c.C.11, which provides as follows:
75(6) Despite any other Act, no person shall inspect, remove, alter or permit the inspection, removal or alteration of information maintained in the register or disclose or permit the disclosure of information that the person obtained from the register, except as this section authorizes. [Emphasis added]
Counsel argued that although the information did not come from the Register, it was information that his client provided to the Register, which would then be covered by paragraph 75(6) of the Child and Family Services Act.
As I understand it, the Child Abuse Register contains information verified by a Children’s Aid Society that a child is suffering, may be suffering or may have suffered abuse which was reported by the Society to the Director in charge of the Child Abuse Register. The information reported to the Director is organized in a specific way under the Regulations adopted under the Child and Family Services Act, and the recording of information in the Register has specified legal consequences. Information which may appear in the Register but that is maintained outside the Register does not attract the same consequences.
I believe that the purpose of paragraph 75(6) of the Child and Family Services Act is to preserve the integrity and confidentiality of the information maintained or kept in the Chid Abuse Register. The information in question does not come from the Register and its release would not affect the Register. Those documents were correctly provided to the Commission and I see no reason not to make them public.
Standard of Review
[11] The parties agreed that the standard of review of the Commissioner’s decision is correctness. (The court did not hear submissions from counsel for the intervener, the CBC, because the CBC had not filed a factum on the application.)
[12] The four factors we must take into account in determining the appropriate standard of review are outlined in Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 1998 778 (SCC), 160 D.L.R. (4th) 193 (S.C.C.):
(1) The presence or absence of a privative clause or statutory right of appeal;
(2) The expertise of the Tribunal relative to that of the reviewing court on the issue in question;
(3) The purposes of the legislation and the provision in particular; and,
(4) The nature of the question.
[13] Considering the four factors referred to in the preceding paragraph, we note:
(1) The Public Inquiries Act is silent on the question of the review of the Commissioner’s decision. Silence is neutral and does not imply a high standard.
(2) Questions of statutory interpretation are generally to be reviewed on a standard of correctness. We mean no disrespect to Commissioner Glaude when we say that he has no special expertise with respect to the interpretation of the section of the Act in question and would not have any greater expertise than this court in construing the subsection in question. This militates for a lower degree of deference.
(3) The purpose of protecting children from abuse is not one which, in and of itself, calls for a deferential approach.
(4) A question of law attracts a more searching review and less deference.
[14] We find the standard of correctness should be applied to the Commissioner’s ruling.
Did the Commissioner Err in his Interpretation of the Legislation?
[15] Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R 559, at para. 26
[16] The Interpretation Act, R.S.O. 1990, C.I. 11, provides that every Act shall be deemed to be remedial,
and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
[17] Iaccobucci J., in Rizzo and Rizzo Shoes Ltd. (1998), 1998 837 (SCC), 1 S.C.R. 27, para. 27, observed as follows:
It is a well-established principle of statutory interpretation that the Legislature does not intend to produce absurd consequences. … An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment. … A label of absurdity can be attached to interpretations which defeat the purpose of the statute or renders some aspect of it pointless or futile.
[18] Thus it is an error to limit the analysis in statutory interpretation, to the literal meaning of the words in the section in question.
[19] A literal interpretation of the words in s.75(6) might well lead to the interpretation put on those words by the Commissioner. However, in our view, this results in an absurdity.
[20] The Legislature intended to ensure that the information maintained in the Register remains confidential. The Act provides at s.75(14) that, “the Register shall not be admitted into evidence in a proceeding” with certain limited exceptions not relevant here.
[21] Furthermore, the Register is not accessible under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F. 31.
[22] The Ministry of Community and Social Services prescribed the forms to be completed by a Children’s Aid Society and filed with the Register; the Children’s Aid Society retains copies of those documents in its file. The documents in this application include those forms from the CAS files. In addition, there is correspondence in the CAS files related to the information being conveyed to the Register. We note that in this particular case, the victims have consented to their identity being made public. Nevertheless, the details of the abuse and other information have not been made public.
[23] As noted above, a Children’s Aid Society has a duty to report to the director and to maintain the information in that report in its files. We are persuaded that the information in that report and the information protected by the confidentiality provision in s. 75(6) must be considered to be co-extensive.
[24] The scheme of the Child Welfare Act of Newfoundland and Labrador was considered by the Supreme Court in Young v. Bella (2006), 2006 SCC 3, 1 S.C.R. 108, para.48, in the context of a negligence action. At issue was the scope of a provision limiting liability for complying with the duty to report. The Supreme Court held that:
The duty to report ‘information’ imposed by s. 38(1) and the protection against suits accorded by s. 38(6) are coextensive and must be read together. The Legislature could not have intended to impose a duty to report and leave the informant exposed to legal liability for complying with the statutory duty.
The question at bar is analogous.
[25] A literal interpretation of the provision would frustrate the intent of the legislative scheme. A broader interpretation protecting the information concerning child abuse that is in the possession of the Children’s Aid Society would be consistent with the goals of the legislation as noted above and therefore in harmony with the paramount purpose of the statute.
[26] We reject the submission that information contained in the Register is protected from public disclosure and yet the same information required to be assembled by a Children’s Aid Society and maintained in its files can be subpoenaed and publicly disclosed.
[27] An order will issue quashing the decision of the Commissioner, declaring the contentious pages in the exhibits in question to be subject to the confidentiality provisions contained within s.75(6) of the CFSA, and prohibiting the Commissioner from making the contentious pages public exhibits.
[28] By agreement, there will be no order as to costs.
_____________________________
CARNWATH J.
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JENNINGS J.
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FERRIER J.
DATE: